What Kind of Animal is Executive Privilege?

Various well-reasoned comments on my post yesterday challenged my suggestion that the courts might defer to the judgment of Congress that executive privilege should yield in any particular case on the ground that Congress, as a politically accountable body, may be better situated to balance the need to override the privilege and the executive's need for the privilege. If executive privilege is rooted in separation of powers, the objection goes, then deferring to Congress in such matters means that the fox guards the chicken coop. At the very least, the objection goes, there is no reason to prefer the judgment by Congress that the privilege should be overridden to the judgment of the President---who is also politically accountable---that it should not be overridden.

I have two thoughts in response. First, I did not mean to say (nor, on re-reading what I wrote, did I actually say) that this alternative, defer-to-Congress, approach is actually right. I only raised it as a possibility to call into question the conventional wisdom. As I noted, the idea wasn't even mine originally.

Second, in defense of deferring to Congress on the matter of executive privilege, it's worth noting that although the Supreme Court in U.S. v. Nixon does say the privilege is constitutionally rooted, nearly all other privileges have the status of sub-constitutional law: attorney-client, clergy-penitent, etc. The principal exception is the Fifth Amendment privilege against self-incrimination, which, after all, is stated expressly in the Constitution. Executive privilege is at best a structural inference.

Accordingly, were the Court writing on a blank slate, executive privilege might best be characterized as a matter of federal common law---i.e., judge-made law that serves constitutional values but is not required by the Constitution and can be superseded by Congress. By comparison, the federal privileges applicable in federal court (with respect to issues as to which federal law provides the rule of decision) are, per Federal Rule of Evidence 501, matters of common law.

To be sure, the analogy to federal common law is not perfect. If we were to treat executive privilege as a true matter of federal common law, then it would require a statute passed by Congress and signed by the President (or passed by 2/3 majorities in each house in case of a veto) to supersede the privilege, and we would expect the privilege to be superseded in general language---not by a committee of one house for a particular case. Nonetheless, the uncertain constitutional pedigree of executive privilege and the sub-constitutional status of other privileges combine to make other sorts of deference to Congress on these matters a plausible alternative to direct judicial balancing.

Unadulterating the Executive Power—The Roberts & Alito Factor

On Monday, the Court announced a decision that, for endangered species advocates in particular, put some very chilling handwriting on the wall. In National Association of Home Builders v. Defenders of Wildlife, the Court held that the Endangered Species Act requirement that all federal agencies “insure” their “actions” do not jeopardize the continued existence of a listed species operates where those actions are not governed by other laws having any mandatory “shalls” in them. Before you run screaming from this post, though, hear me out on why this is important even for those who wouldn’t cross the street to step on a snail darter.

At issue was EPA’s decision to approve Arizona’s Clean Water Act permitting program under CWA § 402(b), a provision listing nine factors EPA must scrutinize in its decision. (Approving states in this context relegates the federal presence in that state to the margins and the water permitting in Arizona that hung in the balance will have real consequences for that several of that state’s endangered species.) These “authorization” decisions have long attracted attention because of the high stakes. Section 402(b), which says that EPA “shall” approve a state with favorables on the nine factors, does not mention endangered species.

ESA § 7 says agency “actions” trigger its requirements, though. While I have argued that the ESA has many flaws, where it should apply is quite apart from how it operates. TVA v. Hill famously held that the ESA is a mandatory overlay on federal agencies and that they “shall” reevaluate their choices in light of imperiled species’ needs. The agencies that administer Section 7 (which help other, “action” agencies comply by consulting with them) made a rule in 1986 stating that Section 7 applies to “all actions in which there is discretionary Federal involvement or control.” And that rule was the issue in the case.

When the Ninth Circuit confronted the issue, it understood that ESA § 7 might be read to add a tenth factor to CWA § 402(b). But, the court held, so be it: the ESA is cross-cutting by nature. Its force and breadth is exactly why Congress amended it after TVA v. Hill to provide for a special cabinet-level “God Squad” authorized to permit exceptions. The rule’s reference to discretion was probably meant to differentiate those “actions” that the agency takes as opposed to those forced upon it. The Ninth Circuit also looked to agency practice regarding the rule and used that as a guide as well. The agencies had traditionally construed Section 7 broadly, understanding it to apply to any thing involving discretionary federal control. Until recently.

At the field office level, both EPA and the Fish and Wildlife Service interpreted the law—the two statutes, the agency rule, and agency practice—to mean EPA should not approve Arizona if it would further jeopardize any listed species. And that is where executive “Power” came in. The gargantuan lobby NAHB apparently liked its chances in Washington much better, pushing for the matter’s elevation to HQ. When that happened, “letters” were written into the record from the agency heads and the litigating position became: Section 7 does not even apply because EPA has no “discretion” to deny Arizona its approval on the grounds that doing so will better insure protection for listed species. To afford Chevron deference to an interpretation of law that emerged from the process in this case, though, is to clothe raw political self-dealing with the force of law. And it dramatically scales back the scope of the ESA.

How many federal statutes close a discretionary decisional process with the word “shall” as the operator for the subject agency action? It is hard to say, but there are many. Each of them is now off the Section 7 hook thanks to five votes (an interesting question is whether they are permanently off the hook, but that is for another day). It is striking how often Justice Alito and Chief Justice Roberts have already been willing to defer to the official whose duty it is to take “Care” that the “Laws” be faithfully executed—especially when it means a law conservatives don’t like will not be executed.

Does it Matter Who Challenges Executive Privilege?

In preparing for my radio gig yesterday, I puzzled over an interesting question (about which I was not asked): Is the argument for judicial intervention in cases involving a claim of executive privilege weaker or stronger when Congress (or a committee thereof) asks for the allegedly privileged info or when it is sought in the course of ordinary litigation? The conventional wisdom says that where Congress seeks the info, the courts are less likely to get involved, because, per the theory of checks and balances, Congress and the President can fight it out in the political arena.

That conventional wisdom appears to draw support from U.S. v. Nixon, in which the Court emphasized rule-of-law values in saying that the President, like any other citizen, must comply with the regular orders of a criminal investigation--at least absent a specific showing that the President needs a shield. In Cheney v. U.S. District Court the Supreme Court did not technically adjudicate a claim of executive privilege, but it drew a fairly sharp distinction between criminal and civil proceedings. One could read Justice Kennedy's opinion there as construing Nixon as turning on the unique function of a criminal investigation. It also could not have been lost on the majority that although the plaintiffs in Cheney were NGOs, members of Congress were effectively lined up contrary to the President. On this reading, Nixon and Cheney support the conventional wisdom: a criminal trial uniquely calls for judicial override of executive privilege in a way that a dispute between the President and Congress does not.

Yet the cases hardly compel that result, and there is sound policy basis for thinking nearly the opposite. When the Court faces a claim of executive privilege in a case to which Congress is not a party, it must decide for itself how to balance the executive's asserted need for secrecy against the public interest. That balance is necessarily subjective, and one might wonder why the Court is better situated than the Executive to strike it. By contrast, if the Court overrides a claim of executive privilege at the behest of Congress, a politically accountable branch has made the necessary judgment. This argument wouldn't necessarily warrant rejection of all executive privilege claims in litigation against Congress, but it would imply that the showing required of the President in such cases is at least as stringent as in a case like Nixon. (I credit my colleague Philip Hamburger for inspiring this point, unless it's wrong, in which case I take the blame.)

NPR All Things Considered Link

Follow this link and click "Listen" to hear me talking about executive privilege.

Meanwhile, back in the other two branches

I'll be on today's 4 pm (Eastern Time) segment of NPR's All Things Considered talking about the White House's announcement today that it is asserting executive privilege in response to the House and Senate subpoenas regarding the Gonzales 8 Massacre. The show is live so I don't know exactly what I'll be asked. I'll post a link to the segment after it runs (unless I make a gigantic fool of myself, in which case I won't).

Update: I undoubtedly had a few more "uhms" than when they edit me, but I probably wasn't a "gigantic" fool, and so will post audio (sometime this evening: NPR website says audio will be available around 7 pm).

The School Assignment Cases and Grutter

There are 185 pages, all told, in the opinions in today's school assignment cases; I have not read them all and don't want to make any unduly hasty judgments. But let me address one issue of particular interest to me. One question bruited about before the decisions came down was whether the Court, with its new composition, would eviscerate or overrule its recent decision in Grutter v. Bollinger, the University of Michigan Law School case. While I might modify my view upon a closer reading of the judgments as a whole, I think we can say that neither of these possibilities occurred. Grutter retains its vitality, for reasons that are important to larger projects I have discussed here, although it may be that those who thought that Grutter could apply in a variety of circumstances turned out to be wrong.

The relevant discussion comes at pages 13-17 of the majority opinion. The majority notes that Grutter rested on "the interest in diversity in higher education." But the Court stresses that the kind of diversity at issue in Grutter was not simply "race alone," but included a variety of factors beyond race. Moreover, the admissions program approved in Grutter involved a set of holistic and individualized determinations about admissibility, and not just a crudely operated search for racial balance. The Court thus distinguishes Grutter from the present cases, certainly without overruling and also, I think, without quietly eviscerating it. I think it is this last conclusion that will occasion the most controversy, and others may point to other aspects of the ruling that they do think damage Grutter. (More on this later.)

The majority, in the course of disagreeing with those lower courts that applied Grutter to various K-12 school assignment plans, also emphasizes that Grutter "relied upon considerations unique to institutions of higher education, noting that in light of the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Thus, to the majority, Grutter takes place within the "unique context of higher education," and within the tradition of academic freedom found in many First Amendment rulings over the past 50 years -- a First Amendment tradition that substantially underwrote the Court's decision in Grutter, and that is not relevant with respect to K-12 schools.

This is of special interest to me because, in several prior works and some forthcoming work, I have argued that Grutter supports a larger argument in favor of a First Amendment framework that is more institutionally oriented: that is, a framework that favors substantial judicial deference to a variety of entities that are especially important to our system of public discourse, that are bound by a variety of self-governing rules and traditions, and that accordingly are entitled to a substantial degree of autonomy. Nothing in today's discussion of Grutter undermines that approach, I think. To the contrary, the Court's explicit focus on the First Amendment aspects of Grutter tends to support it. (Although I must observe pointedly that this focus on the "unique context of higher education" was nowhere in evidence when the Court decided Rumsfeld v. Forum for Academic and Institutional Rights last term.)

Now, this leaves open some important questions, both for the Court and for my own little project. One question is this: Why is higher education a "unique context" in ways that elementary education is not, at least for purposes of this case? Courts usually speak in terms of the special expertise that universities have in deciding who shall be a member of the student body, among other questions; why do lower public schools not possess similar epistemic authority as compared to the courts? Even if the Court erred on this point, the outcome might be no different, given the very different nature of the admission plans in Grutter as compared the plans in today's cases. But the Court might have said more on this point. Perhaps the distinction is that the law school in Grutter did a better job of relating its interest in diversity to the particular expertise it wielded as a center of higher education, while the school districts in today's case engaged in a blanket assignment system that was not closely enough linked to their special interest in education. I can't say, and look forward to further commentary.

One other note I would make about this is that, if I am right, the Court found the law school's claim to epistemic authority strong enough to justify deference in Grutter, but did not find the school districts' claims to epistemic authority strong enough to justify deference in today's cases. But just last week, the Court did defer in a variety of ways to the determinations of public school administrators, in its decision in Morse v. Frederick. What gives?

I am sure much more remains to be said on the impact of today's cases on Grutter. For one thing, Grutter also comes up in a section of Chief Justice Roberts's opinion that is joined only by a plurality of the Court, and Justice Kennedy specifically refuses to join that discussion in his concurring opinion. I do not think that discussion matters to my discussion of Grutter as a First Amendment case, but it might have implications for Grutter in its primary Fourteenth Amendment aspects. Also, I noted above that whether you believe today's decisions damage Grutter may depend on what you think Grutter meant in the first place. After that decision, some commentators argued that Grutter applied naturally across a range of other environments -- public workplaces, lower public schools, and so on. Today's decisions, without definitively answering that question, certainly cast doubt on it. But that was not my impression of Grutter in the first place, so I am not sure that this really counts as evidence that today's decision reduces the footprint of its earlier decision.

In any event, to the extent that Grutter was about the degree to which courts will defer to the expertise of universities as "First Amendment institutions," certainly nothing in today's decision alters or undermines it.

Finding the Silver Lining in Today's School Integration Cases

No doubt the bottom line and the opinion of CJ Roberts in the schools cases will get the lion's share of press attention, but the actual result is, in my view, not nearly as drastic as suggested by some of the rhetoric from that opinion (described by Thomas Healy here.) But even the Roberts opinion itself leaves open the possibility that the Court would uphold an effort to achieve the educational benefits of racial diversity in public schools, if diversity were defined in terms of educational goals rather than in relation to the racial composition of the population. More importantly, Roberts does not have Kennedy's vote for rejecting combating racial isolation as a compelling interest. Kennedy, who casts the fifth and decisive vote and only joins part of the Roberts opinion, thinks it is a compelling interest. He rejects the plans as not narrowly tailored because he thinks the Louisville plan is too ill-defined and the Seattle plan too crude in its categorization of students. He then goes on to describe his own views in terms that align him pretty closely with the liberals:

parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality'’s postulate that “"[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race" is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’'s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

It's worth recalling that while Kennedy dissented in Grutter, he wrote separately to say that he accepted diversity as a compelling interest. His pointed disagreement with Roberts here suggests that there are not five votes on the Court for a commitment to the strong form of colorblindness advocated by Justice Thomas.

Turning Brown Against Itself

As Mike anticipated in his earlier post, Chief Justice Roberts does indeed use Brown v. Board of Education to support the Court's ruling that the Seattle and Louisville integration plans are unconstitutional. "When it comes to using race to assign children to schools, history will be heard," Roberts writes. He then cites language from Brown II (the follow-up case to Brown in which the Court instructed school districts to desegregate "with all deliberate speed") that the equal protection clause requires school districts to "achieve a system of determining admission to the public schools on a nonracial basis."

And if that wasn't enough to make Thurgood Marshall turn over in his grave, Roberts uses Marshall's own brief in Brown to support his opinion. Responding to the school districts' claim that their position is more faithful to the heritage of Brown, Roberts writes that "the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: '[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.'" He then asks, "What do the racial classifications at issue here do, if not accord differential treatment on the basis of race?" This is a bit rich. It's one thing to cite Brown in support of the decision. But to suggest that Marshall and the other lawyers who argued Brown believed in a principle that would invalidate voluntary racial integration is preposterous.

Media Feeding Frenzy

About four seconds after Scotusblog reported the results in the school integration cases, but before the opinions were out, and before CJ Roberts had even finished reading from the bench, I received a call from a reporter asking for my reaction. She seemed surprised when I said that I'd like to read the opinions before commenting on them.

Supreme Court Overrules Brown v. Board???

The emerging theme of the Roberts Court is what I'll call disingenuous respect for precedent. In a number of key cases so far this Term, the Court has purported to follow earlier precedents while issuing rulings that are pretty hard to square with those rulings. The most recent example is Hein v. Freedom From Religion Foundation, Inc., in which Justice Alito, for the Court, "distinguishes" the Flast case on the ground that taxpayer standing is permitted in Establishment Clause cases challenging legislative appropriation of funds but not executive expenditure of those funds. (Yeah, and the VP is not part of the executive branch.) The most egregious example is probably Gonzales v. Carhart, in which Justice Kennedy's opinion for the Court doesn't even go through the motions of explaining how the federal "partial birth" abortion ban's failure to include a health exception is okay when a Nebraska statute's wasn't. (He might have said that Congress gets greater deference than the Nebraska legislature but he appeared to reject this argument.)

Thus we come to today's anticipated rulings in the Seattle and Louisville voluntary integration cases. During the oral argument, CJ Roberts suggested that Brown v. Bd REQUIRES the Court to strike down any use of race, even where, as in these cases, there are no majority "victims" of the program (as there arguably are in conventional affirmative action cases). This strikes me as a very pernicious idea, but at least it's an open question after Brown and later cases whether race-conscious voluntary integration is constitutionally permissible. Dicta in early 1970s cases clearly approves such measures as constitutionally permitted but not required, while the logic of the Court's later color-blindness cases call that principle into question (although color-blindness is called into question by the University of Michigan cases, and the Michigan law school case is itself called into question by the replacement of Justice O'Connor with Justice Alito. Is your head spinning yet?) Anyway, the wiggle room in the doctrine means that no matter how bad today's decisions may turn out to be in other respects, they probably won't be susceptible to the charge that they overrule Brown sub silentio.

I'll report back with a suitably sarcastic (or surprised) headline after the cases are handed down.

Why Do People Care Whether the Justices Like Each Other?

A story in yesterday's Washington Post accurately quoted me stating that the liberal Justices seem more frustrated than angry with their conservative colleagues, both because the liberals are losing a lot more cases this Term than in recent Terms (a consequence of the replacement of O'Connor with Alito) and because in a fair number of cases the conservative majority seems either to dismiss or ignore prima facie persuasive objections from the liberals. One of the main points of the story is that despite the ramped up professional pique, personal relations among the Justices remain harmonious. The story quotes Justice Alito and Georgetown law professor Richard Lazarus for this proposition, and I see no reason to doubt them. As I've noted before, Justice Breyer's standard stump speech explains that the Justices' disagreements are about the law but that they like and respect one another across ideological lines.

To me the interesting question is why the media seem to care so much whether the Justices are being nasty to one another behind closed doors. I suppose there's a gossipy element to it. The Justices lead pretty boring lives, yet they wield enormous power, so if there's some way to spice up the story, reporters want to do that. The interest in whether Justices Souter and Scalia are on good terms is a bit like the interest in whether Brad and Angelina are happy together.

Moreover, inter-personal dynamics could explain results in some cases. Many people have speculated that Justice Scalia was passed over for the Chief Justiceship because he was thought insufficiently attentive to the feelings of his colleagues to be able to build majorities. And it's hard to imagine that Justice McReynolds---easily the worst asshole ever to sit on the Supreme Court---did not affect the outcome of quite a few cases through the sheer force of his despicable personality.

Ultimately, I suspect that the discussions of how famously the Justices get along serve two purposes. First, they shore up the Court's legitimacy, which is why the Justices encourage these discussions. At a time when Capitol Hill softball leagues have had to split into Democratic and Republican divisions because of partisan bickering, it's comforting to know that there are grownups running at least one branch of the federal government. Second, the focus on interpersonal relationships is simply easier for the lay public than trying to understand the actual work of the Court. It takes a fair bit of training and effort to see how a Supreme Court opinion misreads some precedent. If the vote can instead be explained by the fact that Justice X hates Justice Y, that's much easier; hence the interest in looking for such hatred even where it does not exist.

Cheney v. Chaudhry?

Vice President Cheney has been all over the news this week. First, Cheney made headlines for his claim that he need not comply with rules requiring all executive branch entities to report to an oversight office in the National Archives on how they handle classified information because the Office of the Vice President is not part of the "executive branch." Second, the Washington Post has been running a series of revealing stories this week on the dominant role that Cheney has played in the Bush administration across a range of issues.

For more on all of that, have a look at what our colleagues Jack Balkin and Marty Lederman have to say over at Balkinization. Here, I simply wish to draw attention, in the context of this week's reports, to some of last week's Cheney-related news, which I suspect some folks may have missed -- namely, the apparently dominant role that Cheney’s office also has been playing in the Bush administration’s continued, seemingly unconditional support for General Pervez Musharraf in the current political crisis in Pakistan (which is not discussed in the Post series). First, from a column by Pakistani journalist Ahmed Rashid in the Post:

[Recent years have seen] a dramatic drop-off in U.S. expertise on Pakistan. Retired American officials say that, for the first time in U.S. history, nobody with serious Pakistan experience is working in the South Asia bureau of the State Department, on State's policy planning staff, on the National Security Council staff or even in Vice President Cheney's office. . . . "They know nothing of Pakistan," a former senior U.S. diplomat said.

Current and past U.S. officials tell me that Pakistan policy is essentially being run from Cheney's office. The vice president, they say, is close to Musharraf and refuses to brook any U.S. criticism of him. This all fits; in recent months, I'm told, Pakistani opposition politicians visiting Washington have been ushered in to meet Cheney's aides, rather than taken to the State Department.

No one in Foggy Bottom seems willing to question Cheney's decisions. Boucher, for one, has largely limited his remarks on the crisis to expressions of support for Musharraf. . . . Meanwhile, Boucher's boss, Secretary of State Condoleezza Rice, demands democracy and media freedom in Venezuela but apparently deems such niceties irrelevant to Pakistan. [link]

Second, from an interview that longtime Asia expert Selig Harrison gave to the Daily Times:

Harrison said that Washington's Pakistan policy is run by Vice President Dick Cheney's office, adding that there is a group in there, which is pushing for a showdown with Iran, including military action, over its nuclear programme before Bush's term expires.

The American Vice President attaches great importance to Musharraf and it would appear that an understanding has been reached with him on Iran. The Cheney lobby is keen on destabilising Iran, said Harrison, who recently returned form a week-long trip to Iran.

He further claimed that Cheney's last visit to Pakistan was Iran-related, during which Cheney wanted to find out if there was more information to be gleaned from Dr AQ Khan on Iran's nuclear programme and what assistance his network had rendered to it. [link]

Meanwhile, the crowds continue to throng around "suspended" Chief Justice Iftikhar Chaudhry as he travels across Pakistan to speak to gatherings of Pakistani lawyers. This past weekend’s stop was Multan, where a 30-plus hour yatra from Lahore culminated in a speech before thousands of lawyers and Musharraf opponents. "Your motto is supremacy and implementation of law and independence of the judiciary," he told the lawyers, "[and] I am confident your movement will succeed." [link] All of this comes amidst new allegations that Musharraf's intelligence agencies are bugging judges' telephones.

Hai rabba, between Cheney and Musharraf, who’s giving advice to whom? Perhaps the same people are giving legal advice to both of them. If it's constitutionally permissible for Musharraf to manipulate electoral rules so he can continue to serve as both President and Chief of Army Staff, as he has hinted that he might, then maybe (among other things) it's also possible that Cheney's Office of the Vice President is a non-branch of government after all.

As our colleague Sepoy, over at Chapati Mystery, might say, tick tock....

Bong Hits Follow-Up

For the next few years, at least in cases that don't activate Justice Kennedy's libertarian streak, the interesting disagreements on the Court will be intra-conservative. Justice Alito's strong rejection of Justice Thomas's view in Morse v. Frederick is a nice example. Until some time in the 1980s, conservatives were generally unfriendly to free speech claims. Then, responding to what they saw as liberal/left "political correctness," most conservatives embraced freedom of speech as a value. Justice Thomas reveals himself here to be a throwback to an earlier kind of conservative.

To be sure, it's possible that Justice Thomas favors robust protection for free speech as a policy matter but fails to find it in the original understanding of the 14th Amendment. (Never mind his failure to pursue originalism when it comes to equal protection and even other free speech doctrines.) And it's also possible that Justice Thomas simply thinks schools are special, since he joins the Court's robust free speech decision in the campaign finance case. Still, Thomas is probably the least libertarian of the conservative Justices, which may make for interesting future disagreements.

Bong Hits 4 Free Speech

Yesterday the Supreme Court handed down the "BONG HiTS 4 JESUS" case, Morse v. Frederick. The case involved a group of students who unfurled a banner that said "BONG HiTS 4 JESUS" as the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Utah. The school had permitted staff and students to participate in the Torch Relay as a class trip. When the principal saw the banner, she demanded that it be taken down, ultimately confiscated it and suspended the one student who had refused her order, Joseph Frederick. The student brought a lawsuit against the principal and the schoolboard, claiming that they had violated his First Amendment rights and seeking declaratory and injunctive relief and damages. The trial court rejected Frederick's claims, the Ninth Circuit reversed, and the Supreme Court yesterday held that the school officials acted properly in restricting student speech at a school event when that speech could be viewed as promoting illegal drug use.

Though there is much to discuss in reference to this case, one noteworthy feature is the Court's suggestion that the banner in question was not political speech. The Court says that "this is plainly not a case about political debate over the criminalization of drug use or possession." I disagree. On the one hand, the student in question claims that he didn't mean to say anything in the banner -- he just wanted to catch the eye of the people with TV cameras. Fair enough, but the Court's decision (and indeed, the principal's decision) turns on the meaning that other people could have derived from the banner, and it is not plain to me that "Bong Hits 4 Jesus" has nothing to do with a political message of decriminalization.

One could, for example, read the quote as an expression of the view that marijuana use is sacred in some way, just as Christians hold Jesus to be sacred. If so, then it would seem to follow that such use should be legal (just as worshipping Jesus is legal). Another plausible interpretation is that religious belief is like a mind-altering drug, a point made by Karl Marx that could hardly be characterized as apolitical. Finally, the banner could simply express the view attributed to it by the Supreme Court -- urging people to use marijuana or celebrating the use of marijuana. Though such a message does not necessarily entail support for decriminalization, it would seem to lean in favor of such a policy. If the Court would have decided the case differently for a banner with a political message urging decriminalization, then I am not convinced that it analyzed the case correctly.

A second interesting feature of the decision is Justice Thomas's concurring opinion. He argues, on the basis of original meaning, that students at school have no First Amendment rights. He elaborates the way that schools were run at the time the Fourteenth Amendment became law and in the decades that followed. He shows, convincingly, that not only were students routinely silenced, but they were physically punished if they disobeyed a "master's" order. (He explains, in fact, that the doctrine of in loco parentis -- where school officials act as parents to schoolchildren -- "merely limited the imposition of excessive physical punishment"). In view of this history, Justice Thomas argues, it is difficult to imagine that anyone contemplated free speech rights for students at school.

Though Justice Thomas is probably correct about the prevailing views at the time of the framing and thereafter, his opinion is unfortunate. He is prepared to embrace uncritically the values of people who lived at and before the turn of the century and who, apparently, took the position that not only should children be seen and not heard, but they should also be beaten for disobeying authority. This view of children happens to coincide with deplorable views of women (who only received the right to vote in 1919) and African-Americans as well, a caste system in which white men stand at the top, sceptre in hand. Just as men could beat their wives and children with impunity, so could the schools -- acting in the place of parents -- beat their children. This "traditional authority" that Justice Thomas wishes to honor would also, as he surely knows, have found preposterous the assertion of a right to marry across racial lines.

Justice Thomas's opinion nicely illustrates the flaws of originalism as an approach to constitutional interpretation: it sets in stone the prejudices and vices of the framers rather than taking their words (and their full implications) at face value. In the scheme of things, I am far less concerned about a student's freedom to hold up a "Bong Hits 4 Jesus" banner -- on which there can be reasonable debate -- than I am about a student's right not to be beaten by his teachers for disobeying the rules, a right that Justice Thomas's opinion needlessly calls into question.

Sicko Part 3: Follow the Money

Among the more powerful scenes in Sicko is Moore's literal placement of price tags on the heads of Senators and Representatives (of both parties) reflecting how much money their campaigns have received from pharmaceutical companies, HMOs and other health care industry interests. Yet---spoiler alert!---the final scene shows Moore traipsing over to Congress to see whether he can get some action. Okay, technically he goes to ask them to do his laundry, but the viewer understands that this is really a call for the people to rise up to demand a fundamental change in our health care system.

The underlying culprit, however, as Moore seems to realize, is our system of campaign finance. So long as well-heeled interests can legally "buy" support for their positions in Congress, little is likely to change. And today's Supreme Court decision in FEC v. Wisconsin Right to Life indicates that things will get worse before they get better. The ruling says that the First Amendment bars the regulation of so-called "issue ads" by corporations and unions, unless "the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." That means that candidates who favor health care reform that the pharmaceutical and insurance companies oppose can expect to see hundreds of thousands if not millions of dollars worth of ads attacking them, with some boilerplate like "Call Congressman Smith and tell him to stop harming our seniors" thrown in to avoid FEC scrutiny. (Rick Pildes has a nice explanation of the case's significance here.) Because this is a constitutional ruling, there's nothing Congress can do about it, even if it wants to. We just have to wait for personnel change on the Supreme Court.

So maybe Michael Moore should have asked Chief Justice Roberts to do his laundry.

"Sicko" and the Clinton Health Care Plan

Like Mike (see his post from yesterday), I thought that Michael Moore's new film "Sicko" was a fascinating and important piece of documentary film-making. The film is probably most important because it will almost certainly cause many people to stop limiting their thinking to what seems currently politically possible and to step back and ask Moore's bigger question: "Who are we?" Why have Americans accepted a situation in which not only do 1/6 of us have no health coverage at all but in which the rest of us glumly accept a completely broken system -- especially when that system demonstrably harms many people, and even more shockingly when a vastly better alternative is practiced in almost every modern country in the world?

The fundamental complaint that everyone could level against the movie, no matter one's political viewpoint, is that it is clearly impossible to give all of the issues a decent airing in 2 hours. Everyone, I suspect, will leave the movie thinking, "He should have said more about ____," with some viewers thinking that the missing elements would have strengthened Moore's endorsement of universal single-payer while others will be sure that Moore missed some things that are more important than anything that was included in the film and that would have fatally compromised his argument. I fall into the former category.

That said, there was one aspect of the movie that I thought was more an error of commission than omission. Having described how private health insurance plans had emerged in this country in the 1970's and 80's, Moore then surprised me by depicting the failed Clinton health care initiative of the early 1990's as a good idea that was destroyed by Republicans. This is surprising both because Moore has never seemed to be much of a Clinton fan (given his lefty populism versus the Clintons' "third way" policy centrism) and because the plan that Hillary Clinton's team proposed was a genuinely terrible idea. Moreover, it was terrible for precisely the reasons that the current system is terrible -- it was based on private, for-profit HMO's.

In what became their classic triangulation mode, the Clintons built their health care proposal by first unilaterally disarming, which in this case meant simply ruling out any thought of proposing a single-payer system. Having given away what had to be at least their best negotiating position, they then proposed a system based on what were in essence regional super-HMO's. The logic was, as always in health care debates, based on some seemingly plausible but ultimately misapplied notions about the power of competition to restrain price increases. The plan would have been a give-away to the health insurers in much the same way that the Medicare drug benefit of 2004 (that Moore rightly ridicules in his film) was a transfer of hundreds of billions of dollars to health care interests. While some might still want to defend the Clintons' political calculation, though probably far fewer -- if any -- would want to defend the actual proposal, I never would have imagined that Michael Moore would endorse it after all these years.

That is only a minor error in any otherwise ambitious and important documentary, but it is surprising given that Moore's greatest contribution to this debate is his attempt to jolt us out of our current political constraints. The Clinton health plan, like so much of both Clintons' political strategizing, took for granted the constraints of the political debate, reinforced rather than challenged those constraints, and ultimately made them worse.

Sicko

The new Michael Moore film, Sicko, is (IMHO) terrific. No doubt it contains some inaccuracies and misleading cuts (like his other films) but its overall argument is irrefutable: There is something clearly wrong with our health-care system in light of the better outcomes achieved for less money by other industrialized (and even some not so industrialized) countries. Moore's film also has the virtue of unapologetically touting a single-payer system, rather than one of the satisficing hybrids currently being proposed by Democratic Presidential candidates (although those proposals are certainly better than the status quo). He rightly describes opposition to "socialized medicine" as simple red baiting. As a practical matter, those who note that our politics won't yet embrace a universal single payer system may be right, but that's no reason not to discuss it.

The film's principal didactic flaw is its failure to explain why the U.S. system is such a disaster (although the point could be inferred by astute viewers): because so much of our health care dollar goes to administrative costs that take the form of insurance companies trying to deny coverage; a system in which everyone is covered can spend nearly every dollar on actual medical care; moreover, it does not give people incentives to skimp on preventive care which ends up costing more in the long run. Moore presents choice examples of the cruelty of the private insurance system but few good stories of its perversity.

Meanwhile, as has been widely reported, Moore is being investigated for violating the Cuba travel ban (although he says his application for permission under the exception for journalists was ignored). The travel ban is, in my view, bad policy, but not unconstitutional. However, a government decision not to process Moore's application, or a government decision to prosecute Moore, based on hostility to the content of Moore's views, would pretty clearly be a First Amendment violation. It would also be great publicity for the film, as Mark Twain surely would have noted.

Gitmo's Legacy

Rumors are once again circulating that the administration is planning/hoping to shut down the military prison at Guantanamo asap. Yesterday's NY Times story adverted to the further legal issues that would arise were that to happen: Detainees moved to locations clearly within the U.S. might thereby become entitled to greater constitutional protection (though no greater statutory protection, because the Military Commissions Act (MCA) of 2006 draws no distinctions based on where an alien is held); meanwhile, human rights issues would be raised by deporting/extraditing detainees to countries where they would face torture, etc.

Here I'll very briefly raise a different question: What would be the long-term meaning of a decision to close Gitmo in the next few weeks or months? We might think that this would show just how weak our courts are in the face of a determined executive. After all, despite repeated losses in the courts, the administration will have succeeded in holding detainees for over half a decade, and ultimately evading any real consequences of Supreme Court decisions rejecting sweeping executive claims. We might call this the "legal realist" take, and it would call attention to the disconnect between the law as announced by the courts and the facts on the ground.

I'm quite sympathetic to the legal realist view, but I also want to suggest that by closing Gitmo, the Bush administration would be losing the long-term legal battle. Here Lincoln is a useful example. Scholarly treatments of Lincoln's assumption of emergency powers call attention to how he got away with bending---we might equally say breaking---the Constitution to fight the Civil War. But for a variety of reasons, the Supreme Court never upheld Lincoln's most aggressive moves on the merits. Indeed, the most notable decisions to come out of the Civil War are odes to the constitutional constraints on the President: Ex Parte Milligan and Ex Parte Merryman are perhaps the leading examples. It's true that the Lincoln won The Prize Cases but the result in that case---that the President can respond to an attack without prior authorization by Congress---seems obviously correct. Likewise, the most disturbing decision from the era is Ex Parte McCardle, which permitted Congress to withdraw habeas jurisdiction over a pending case---but the consensus reading of McCardle makes its result turn on the availability of other avenues of relief. That's a fairly technical way of making a fairly simple point: By any measure, Lincoln exercised sweeping powers during the Civil War, but the legal legacy of the period was much more mixed because the Supreme Court did not validate the most sweeping measures.

Accordingly, even though the MCA effectively overrules Hamdan v. Rumsfeld (and then some!), if we make it through this period without the Supreme Court ever having to uphold the MCA, the legacy of the Bush administration will not be the fact that it effectively exercised sweeping power but that the Supreme Court rejected its boldest assertions of power. This is really the converse of the point made by Justice Jackson in his Korematsu dissent. Jackson complained about the Court validating military judgment and thereby giving it the force of law; invalidation of executive authority---even if it has little practical effect in the immediate circumstances---can act as a brake on executive action in future crises.

And no, I'm not saying that George W. Bush is like Abraham Lincoln or vice-versa, except in this one respect.

Larger Law Faculties and the Hidden Cost in Hot Tubs

A recent National Law Journal article describes a trend of increased lateral movement among faculty at top law schools. The article does not actually cite any hard data for the proposition that there is such a trend. Instead, it quotes various faculty and deans about the number of moves and refers to Brian Leiter's blog. It certainly looks like there is a great deal of movement, but it would be useful to know whether, as a percentage of faculty size, there actually has been an increase in lateral movement in recent years, and if so, by how much.

Whatever its exact scale, the NLJ article and Professor Leiter attribute a substantial portion of the increased lateral movement to deliberate faculty growth at Harvard and Columbia, and to the resulting trickle-down effect. Both Harvard and Columbia aim to increase their range of scholarly expertise and decrease their student/faculty ratios. As a Harvard alum and especially as a Columbia faculty member, such growth is of more than theoretical interest to me.

For the most part, it's win/win. A larger faculty without a larger student body means smaller classes, which is good for students and faculty alike. Faculty growth could have a number of downsides for faculty. One is dividing up the financial pie (salary, perks, etc) among a larger number of faculty, thus resulting in smaller pieces. This is likely to be more of a theoretical than a real problem, however. Deans can and apparently do have great success raising money from alumni for bringing down student/faculty ratios, and so faculty growth is likely to be accompanied by revenue growth.

Another risk is diminished faculty quality, in much the way that expansion of professional sports leagues dilutes the talent. I'm highly dubious of this effect too, because the talent pool in legal academia is quite deep. Even law schools with relatively unimpressive student bodies by numerical criteria typically have excellent faculty. (They also have many excellent students as measured by other relevant criteria.)

Another potential but not actual risk of faculty expansion is the loss of collegiality and self-governance. I say this is not an actual risk because all law faculties are already too big to have productive committee-of-the-whole discussions; the ideal size for such discussions is about 7; even a small faculty has 25 or so members. But no law faculty is at risk of becoming so big that it can no longer function as a cohesive entity. If I recall correctly, the maximum size of a functioning organization in which face-to-face operations can still work is about 300. (My source is Malcolm Gladwell's The Tipping Point. "Mega" law firms are not a counter-example. They typically do not have more than 300 lawyers in any given location, and are further divided among practice groups.) Law faculties are well below that number, even when one includes professional administrators.

The real risk of faculty growth is over-expansion. This past year saw fierce competition for admission to college, and so the enrollment picture for law schools looks good for the short to medium term as the "echo Boom" babies enter their twenties. But if the U.S. population starts to decline in the next 20 years or so, U.S. law schools could find themselves in the same position in which Japanese universities now do: facing shrinking applicant pools and having to compete by offering the best hot tubs. (See story here.)

Do “Hate” Crimes Have to Involve Hatred?

Earlier this week, the New York Times ran a story about a case that is unfolding in the New York courts. Three men – Anthony Fortunato, John Fox, and Ilya Shurov – have been indicted for murder under the state Hate Crimes Act in connection with the killing of twenty-nine-year-old Michael Sandy. The three defendants allegedly entered a gay chat room to find a robbery target, selected Sandy in that chat room, and lured their prey into meeting with them at a deserted spot. They stand accused of subsequently beating Sandy and chasing him into traffic, where he sustained injuries that led to his death in the hospital.

The defense is asking the judge who approved the indictment, Justice Jill Konviser-Levine, to dismiss the hate-crime-enhanced murder charges, on the ground that there is no evidence that the defendants hated gay people. The prosecution responds that unlike other states’ hate crime legislation, the New York Hate Crime law does not require hatred or animosity toward the group from which a victim is selected.

The relevant language of the law provides for longer sentences when a defendant was motivated to select her victim in whole or substantial part “because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of [the victim].”

How does one interpret the language of the statute? On its face, it appears to cover the decision to target a person because he is gay, even if the “belief” regarding gay people has to do – as defense attorneys claim here – with opportunism rather than hatred. According to the defense, the choice of a gay victim reflected a belief that a gay man would be more willing to meet in a deserted spot, more likely to show up alone and to be in possession of money or drugs, and less likely to resist attempts to rob him. If hate need not be proved, defense attorneys add, one could classify crimes against the elderly, women, and immigrants – selected for their perceived fearfulness and inability to fight off assailants – as hate crimes.

The dispute between the defense and prosecution seems squarely to raise the question of what is the essential point of hate crime statutes. If the point is to address “hatred” of particular groups, as the word “hate” in the title suggests, then prosecuting a robber for picking old women as easy targets would seem misconceived, inappropriately exposing garden-variety robbers to enhanced sentences. It is natural for criminals more generally to choose a victim who they believe will offer the greatest payoff at the lowest risk. That stereotypes play a role in guiding such choices does not make them hate-motivated, in the way that a lynching is.

One might conceive of hate crime statutes differently, however, as addressing something broader than group-directed hatred. They may be about extending added protection against (and hence punishment for) crimes that discriminate – for whatever reason – on the basis of enumerated characteristics. The hate crime statute, if read this way, represents a recognition of a distinct harm in being targeted as a crime victim because you are a member of a particular group, much in the way that anti-discrimination law conceives of adverse employment decisions on the basis of race or sex to be a distinct harm.

When an employer decides to fire an employee because of the latter’s race, it may be out of the belief that people in particular racial groups are less intelligent or able than people in other racial groups. A holder of such a belief does not necessarily feel any hatred or animosity toward the perceived “inferior” group. Similarly, an employer who refuses to promote women because they believe women’s priority will be their families rather than their job does not necessarily “hate” women, but he or she does still discriminate against them on the basis of sex. As a society, we believe that such discrimination is qualitatively different from, and worse than, decisions (to terminate, to fail to promote, and to rob or kill) that have nothing to do with invidious classifications.

Perhaps the ambiguity lies in the statute’s use of the word “hate” in “hate crime.” Maybe what is meant, at least in New York, is that the crime targets people on the basis of a category that is frequently associated with invidious hatred. It is, for example, possibly because of a more generalized hatred against gay people (and the stereotypes that have developed as part of that hatred) that a group of men planning a robbery might be led to believe that a gay chat room would be a good place to find a compliant, lonely, and cooperative victim. That they might do so out of greed combined with stereotypical thinking rather than out of hatred does not alter the reality that they have discriminated against a man because he is gay.

The Other Half of "Borking"; Or, With Friends Like These...

Over at the VC, Ilya Somin writes about what he would like to ask Robert Bork at an upcoming conference on Bork's work in which both Somin and the judge will be participating. Somin writes that he plans to ask Bork whether "his views on legal and/or political issues changed as a result of the ordeal he went through during his ultimately unsuccessful Supreme Court nomination process." In other words, was Bork radicalized by the scorching (and, in my view, often unfair) criticisms Bork received in the course of the nomination process?

It's a good question, although I'd be surprised if the judge says anything terribly revealing in response. I think Somin should also consider the other half of the question, though: Did Bork's views change as a result of the support he received during the course of the confirmation process? In the wake of such controversies, people often consider the ways in which vehement criticism can alter one's views, usually by hardening them. Less often, though, do they consider the ways in which the equally vehement praise and support the subject of a controversy receives from his confreres and political allies, who have themselves been whipped into a lather by the other side's vehemence, may similarly harden one's views. Of course, this isn't limited to one side of the political divide -- to the contrary, the political divide depends on such controversies, and the views of individuals on either side may be reinforced, or distorted, depending on how you see it, by this dynamic. I think here of the Dixie Chicks.

I imagine it must be nearly impossible to stay centered in the face of such public storms, simply in light of the large number of people in this fine country. Imagine being the center of a public debate about which 99 percent of the country couldn't care less. Then imagine that only one percent of the interested one percent of the population is moved to write a letter, or a blog post, or what have you, expressing their views, pro and con -- in other words, some 30,000 missives. It puts Miracle on 34th Street to shame. Add the klieg lights, the hostile interlocutors at the hearing, the equally large horde of people telling you you're absolutely right; mix and stir. The result: no matter how many people are altogether indifferent to you, you are at once convinced that you are hated by a vast horde of people, and equally convinced that you are vindicated by the enormous wave of support you have received. I can't imagine that anyone could easily retain their equilibrium in such circumstances. So, to modify Prof. Somin's question, the question is not just whether Judge Bork (or Natalie Maines, or the object of controversy du jour) was radicalized by his adversaries, but whether he was radicalized by his friends too.

I must add, to further throw cold water on Prof. Somin's question, that I suspect the actual subjects of controversy, like Bork or Maines, are among the least reliable witnesses on such matters.

Kafkaesque Jurisprudence

In my FindLaw column today, I describe the Supreme Court's treatment of the petitioner in Bowles v. Russell as almost literally Kafkaesque. I call attention to a scene in the penultimate chapter of The Trial, which includes an allegory that comes reasonably close to the treatment of Bowles. Nor does the connection appear to be entirely accidental. For a forthcoming book, my colleague Jack Greenberg and noted Kafka scholar Stanley Corngold have collected Kafka's work product as a lawyer (his day job), and have traced interesting connections between that work and his fiction.

I am hardly the first person to complain about a Kafkaesque legal decision. A Westlaw search in all federal cases revealed 187 uses of the term by courts. But that only puts Kafka in at best fourth place for dystopic fiction writers by my calculation. Dickens does slightly better: discounting duplicates, the term "Dickensian" or "Bleak House" appears in 204 cases. George Orwell does better still, with 224 references to "Orwellian." But the champion by a long shot is Joseph Heller. Although the terms "Hellerian" and "Helleresque" do not appear to exist, a remarkable 1,533 federal cases use the term "Catch-22." Any other writers I've missed?

What Does the War on Hemp Have to Do with the Rule of Law?

In a Findlaw column today, I lay out the case for ending DEA’s war on cannabis sativa L., the genus and species that makes pot and “industrial hemp” alike. One of the issues in the background of the column, but which I thought others might weigh in on here, is the relevance of agency rules that have been invalidated for procedural error.

Because of a statutory exemption woven into US drug laws long ago, hemp stalks, sterile seeds, and other products of industrial hemp are excepted from the definition of "marijuana." Eventually, synthetic production of THC (the active ingredient in pot) was possible and Congress amended the drug statutes to prohibit THC expressly, but it left the prohibition of marijuana in place, including the hemp exemption.

Recently, fearing who knows what, DEA took the position that the later amendment also banned all of the cannabis plant, since THC is present throughout. DEA originally issued an “interpretive rule,” followed immediately in the Federal Register by a proposed legislative rule that it finalized, declaring that all of the cannabis plant is a Schedule 1 drug. Both were invalidated by the Ninth Circuit, the first for being a violation of the Administrative Procedure Act Section 553, the second for being a “scheduling action” without the requisite trial-type hearing. And DEA never followed up with another rulemaking.

The result is that only the enabling statutes, along with DEA’s “considered” and highly publicized judgment on their interpretation, remain in force on the question. The courts that have reached the issue have split and another lawsuit is just under way in North Dakota.

My question to the blog is this: should DEA’s original reaction—that it must issue a rule with the force of law on the point to solidify everyone's rights and duties—be held against it in a subsequent proceeding where it will no doubt argue that its word on the "interpretation" is enough? Should the answer be different depending on whether it is a lower court or the Supreme Court in which DEA is litigating? Admin junkies will recognize a Brand X issue here, but it is not necessarily framed that way.

The Karl Rovification of the Supreme Court

As I noted last week (here), Tom Goldstein is projecting the current Supreme Court Term as VERY conservative (here). Jeff Toobin makes the same point in The New Yorker (available here, and while you're over at The New Yorker, check out Seymour Hersh's utterly frightening account of what happened to General Taguba for uncovering the truth about Abu Ghraib, but then come back to Dorf on Law). Here I'll tentatively observe something about the character of the 5-4 decisions we're seeing. Perhaps a close reading of all of this Term's cases wouldn't bear this out, but my subjective and informal impression is that when the Court splits 5 (Roberts/Scalia/Kennedy/Thomas/Alito) - 4 (Stevens/Souter/Ginsburg/Breyer), the 5 are basically ignoring or dismissing objections raised by the 4.

Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000 decision in Nebraska v. Carhart; yet Justice Kennedy's opinion, while drawing a plausible distinction with respect to the notice issue, basically punted on distinguishing the Nebraska case with respect to the health exception. The majority could have said it was overruling the Nebraska case, but for their own reasons they didn't want to, so their response to the dissenters was the jurisprudential equivalent of a shrug.

Likewise in last week's ruling in Bowles v. Russell, in which the Court held that the 14 day maximum extension for filing a notice of appeal is jurisdictional, thus throwing out the appeal of a man who filed two days late, after being told by the district judge that the deadline was still a day away. Justice Souter just can't seem to get the majority to focus any attention on the fact that recent unanimous decisions reject the definition of "jurisdictional" deadlines that Justice Thomas's opinion adopts. The closest Justice Thomas comes to addressing Souter's objections is to dismiss them as dicta. (My FindLaw column for tomorrow addresses the merits of Bowles. Hint as to my take: I call the majority decision "Kafkaesque.")

What seems to be happening on the Court has some similarity to Karl Rove's political strategy of solidifying the base and ignoring anybody to the left of the exact median vote. Like President Bush, Chief Justice Roberts is happy to have bipartisan support for his decisions, where bipartisan means that he rules as he wants and is happy to have the liberals join him sometimes. The nine Justices are not the entire American electorate, of course, and so the strategy is more predictable at the Court. As long as Roberts et al can get Kennedy's vote, they don't really care what Stevens, Souter, Breyer or Ginsburg think.

Sure, one occasionally sees an unusual lineup, and contrary to Toobin's suggestion otherwise, none of this appears to be personal. Justice Ginsburg may be expressing professional annoyance when she reads her dissents from the bench, but she can still socialize with the Scalias. And Justice Breyer's standard stump speech continues to include the assurance that the Justices play nicely with one another. But the continued observance of inter-personal niceties should not obscure the fact that at a jurisprudential level an important shift may be underway.

Shiny Happy Students

Law schools that emphasize teaching over scholarship are more likely to produce happy, well-adjusted students who get higher grades and do better on the bar exam. Or at least that’s the upshot of study published recently by professors Kennon Sheldon and Lawrence Krieger in the Personality and Social Psychology Bulletin.

The study was based on evaluations of students at two schools with similar admissions profiles, yet different approaches to legal education. At school 1, faculty members are hired mainly on the basis of past and potential scholarly production, and scholarship plays a major role in compensation. School 2 places a greater emphasis on hiring faculty who have practiced law and are likely to be good teachers, and teaching ability counts as much as scholarship in setting salaries. In addition, school 2 provides teaching skills seminars for its faculty and has a more robust skills curriculum. According to the study, students at both schools experienced a marked decline in psychological well being during their first year. But students at school 2 were happier, received better grades, scored higher on the multi-state bar exam, and were more motivated to begin their legal careers than students at school 1.

The study’s conclusions strike me as relatively unsurprising. Although the authors use jargon such as “autonomy support” and “self-agency,” they are basically talking about the extent to which law professors are supportive, nurturing, and understanding as opposed to detached, unsympathetic, and insensitive. Of course, being a productive scholar and an engaged teacher are not mutually exclusive. Some people are both, while some are neither, and it is certainly true that writing scholarship can make one a more interesting and dynamic teacher. But I do think it stands to reason that if a school cares primarily about scholarship, most faculty members will devote more of their energy to research and writing than to all the little things that make students feel appreciated and respected: office hours, review sessions, career counseling, letters of recommendation, social events, etc. And if students feel appreciated and respected, it makes sense that they will be happier, feel better about law school, and hence be more interested in studying and learning.

One mystery is the identity of the two schools. The authors do not identify them, although they do provide several clues. School 1 is a public school located in a small city with about 230 students per class. The median age of entering students is 25, and there is no part-time or evening program. In addition, there is a mandatory curve. School 2 is a private school in a major metropolitan area with about 330 students per class and a significant part-time/evening program for students who work. The median age of entering students is older (28), the students have more work experience and graduate with more debt. In addition, the percentage of white students is higher at school 2 than at school 1. According to the authors, both schools admit “highly qualified” students with largely equivalent undergraduate grades and LSAT scores, though school 1 has a significantly higher national ranking for reputation and scholarly production than school 2. Think you recognize your school in one of these profiles? Let us know, and maybe we can solve the mystery.

Legal Wonders of the World

Our colleague, Diane Marie Amann, draws our attention to, and invites our nominations for, an interesting contest that she and her co-bloggers at IntLawGrrls are conducting to name the "Seven Legal Wonders of the World." Here's Diane's description of the contest and its inspiration:

A contest launched 6 years ago by the entrepreneurial New7Wonders Foundation has driven more than 4 million people to cast 28 million votes for humankind's 7 most wondrous feats of engineering or architecture (of the traditional 7 only 1, the Pyramids, is still in existence). You've got just 60 days left to choose among the 21 finalists, which range from Athens' Acropolis temple to Bavaria's Neuschwanstein castle, from the statue of Jesus in Rio to the Statute of Liberty in New York. If the spirit moves you, vote here.

Or, help IntLawGrrls put together a different list -- of the World's 7 Legal Wonders. Post a comment or e-mail us at intlawgrrls@gmail.com with your nominee. Names of persons, things, events, ideas all are fair game. And your nominee may be a "wonder" in the negative as well as the positive sense of the word. [link]

So far, the nominees include: (1) the 13th Amendment to the U.S. Constitution, (2) the Constitution of the Republic of South Africa, (3) the Law Merchant, and (4) the Edicts of Aśoka.

Just as interesting as any particular candidate for "Legal Wonder" may be what the nominations say about the cultures from which these Legal Wonders have emerged and our own. Mary Rebecca Bynum has written that when she teaches her undergraduate course on "The Seven Wonders of the Ancient World," her purpose is not simply to teach students about the Seven Wonders themselves, but to explore "how members of one culture view other cultures, and what use they make of other cultures in their own world." This contest, too, may be as much a window into our own values, ideals, and culture as it is into the cultures that produced the particular "Legal Wonders" being nominated.

So who or what do we nominate here at Dorf on Law? There are of course many worthy candidates, but I nominate Dr. B.R. Ambedkar, a Dalit (or so-called "untouchable") leader who at times clashed with Gandhi and other Congress leaders during the Indian independence movement and later became one of the principal architects of the Indian Constitution, which among many other notable things abolished "untouchability." Over fifty years after his death, Ambedkar remains a deeply influential figure in contemporary India, although to many people also a controversial one. A crude indicator of progress under Ambedkar's Constitution may be seen in the sweeping recent victory in the state of Uttar Pradesh by the Bahujan Samajwadi Party, a party created principally to represent and advocate on behalf of Dalits. Not only did the BSP surprise observers by winning an absolute majority of seats in the state -- returning Mayawati, the first Dalit woman to lead any of India's states, to power as the state's Chief Minister -- but it apparently did so with significant support from a "rainbow coalition" that included significant numbers of upper caste Hindus. On the other hand, for a sense of how far India has yet to go to fully realize its formal abolition of untouchability, recall my post on the status of Dalits from several months ago.

Feel free to post your nominations for the "Legal Wonders" contest, along with your reasons, in the comments to this post (or, co-bloggers, perhaps in blog posts of your own). Or send an email to intlawgrrls@gmail.com. If it seems easier to identify "legal blunders" than "legal wonders," that need not hold you back, for if a blunder is bad enough -- if it's a downright fiasco -- perhaps it inspires wonder on that basis alone. So whether fabulous or fiasco, fire away with your nominations.

My NY Times Op-Ed on Begging

I have an Opinion piece on the NY State begging law in today's NY Times. It was solicited by one of the regional editors and thus doesn't appear in all the print editions. At least with respect to the editions in NY State that are not included, that's a bit ironic because the point of the op-ed is to decry the fact that the law could be valid in parts of the state but invalid in others.

Jeffrey Rosen on Justice Kennedy

The cover story of the New Republic (available here, although you have to register for free to read past the first page) is what can only be described as an attack on Justice Anthony Kennedy by Jeffrey Rosen. The tone and content are so over the top that one wonders whether Rosen believes that Kennedy personally harmed Rosen in some way. Rosen's brief against Kennedy amounts to the following:

1) Kennedy is the most activist of the current Justices in the sense that he votes to hold laws unconstitutional more often than any other;

2) Kennedy's writing style is florid;

3) Kennedy's conception of human psychology owes more to great works of literature than to interactions with real people;

4) Kennedy professes to care about dialogue but really only wants others, including schoolchildren, to hear what he has to say and agree;

5) Kennedy merely poses as an open-minded agonizer so that lawyers and his colleagues will come to him as supplicants;

6) Kennedy's form of moderation is worse than Justice O'Connor's was because she wrote split-the-difference opinions that had no broad effect, whereas Kennedy writes in broad abstract terms.

Summarizing Rosen's argument in this way, however, does not convey the utter contempt that Rosen apparently has for Kennedy, which I find perplexing to the point of sadness. Rosen's a very smart guy and his legal scholarship is quite creative. In his incarnation as a public intellectual, he invariably stakes out what we might call a New Deal liberal position, highly skeptical of judicial review for liberal as well as conservative causes. That's a perfectly respectable position but Rosen has a bit of the very arrogance he attributes to Justice Kennedy. He, Rosen, is so sure that his view of jurisprudence is correct that he thinks that any reasonably smart person who takes a different view must be trying to pull a fast one. Thus, Rosen thinks that Kennedy's belief in the utility of courts must simply be a mask for aggrandizing his own power. It doesn't seem to occur to Rosen that Kennedy might have good reasons for his views, reasons of the sort that Ronald Dworkin and others have articulated at length. It's fine to disagree with their arguments, and I think Rosen and the conventional wisdom are right to find some of Justice Kennedy's rhetoric a bit over the top, so I'll give him point number 3. But on the substantive points, what Rosen contends is some sort of character flaw is simply a jurisprudential disagreement. To wit:

1) Kennedy is the most activist Justice because he joins the liberals in striking down laws on individual rights grounds and the conservatives on federalism grounds (and in affirmative action cases). One can disagree with any of those decisions, but Kennedy's colleagues are not less activist; they're just more predictably ideological.

2) As I said, I'll give Rosen this one. Kennedy is prone to flights of rhetoric. But note that this hardly makes him unique in the history of the Court.

3 -- 5) Rosen makes his claims about Kennedy's psychology and motives based on a few statements and quotations. Moreover, as for the claim that Kennedy merely poses at agonizing, Rosen himself cites cases in which Kennedy changed his mind after a conference vote, thus contradicting himself. In any event, Rosen's assumption that the key to understanding Justice Kennedy is psychoanalytic rather than jurisprudential is itself arrogant. One might equally probe Rosen's own childhood and early professional associations for the sources of his views.

6) Many constitutional lawyers and scholars think that Kennedy's jurisprudence---which seeks to reconcile various decisions by reference to abstract principles---is more appropriate than O'Connor's split-the-differencism. These are two positions in a jurisprudential debate. The fact that Rosen supports one view (Sunstein's) while Kennedy takes another (that of Dworkin and others) is hardly grounds for sweeping condemnation.

This post may be read as the inevitable defense of a former law clerk against an attack on his one-time boss, and at some level it is. But I want to be clear that I have no problem with strong disagreement with Justice Kennedy's decisions or approach. I often find myself disagreeing with opinions Justice Kennedy writes or joins---especially this Term. However, there's a difference between fair-minded criticism and personal attack. Rosen crosses that line.

Mars Needs Moms Redux

In an earlier post, I criticized the Berkeley Breathed children's story, Mars Needs Moms, for celebrating women's dedication to domestic drudgery. As I explained in the post, I based my remarks on an NPR interview in which Breathed spoke about the story of a boy whose mother is kidnapped by Martians. I had not read the book myself, and Breathed subsequently sent an email asking me to read it and to blog again after doing so. He generously sent me a copy of the book, which I have now read.

The story is not exactly what I gathered from the NPR interview. At the end, (spoiler alert), the boy -- who had been wondering why everyone worships mothers and who had concluded that the Martians had wisely kidnapped his mother to perform domestic tasks -- faces a life-threatening situation, and his mother sacrifices her own life (at least seemingly) to save his. The lesson, then, is not -- as I previously thought -- that children should appreciate moms for the mind-numbing tasks that they perform. It is, instead, that children should appreciate the bottomless love that mothers have for their children, the real reason that moms are worshiped throughout the world.

My reaction to the real story is this: It is charming, funny, and wonderfully illustrated. But while it does not worship women for their tireless willingness to perform drudgery, it still misses an important opportunity. For many children, it is an unfortunate reality that they see their mothers doing the lion's share of the housework and childcare. This may be, in fact, why children tend to direct anger at their mothers rather than at their fathers: someone who actually takes care of you most of the time is in the best position to antagonize you (by making you eat broccoli or throw out your garbage).

Children's stories, however, provide a forum for experimenting with alternative realities that do not precisely track our world. Breathed recognizes this, as his incorporation of the red planet and its inhabitants demonstrates. But in Mars Needs Moms, fathers are all but invisible. They do not tell children to eat their broccoli or clean up, they do not absorb their children's wrath, and they apparently do not carpool or perform the other tasks that would make them appealing to the Martians.

It is true that fathers in this story also do not sacrifice their lives for their children, so they are not the heroes. But it is hardly revolutionary to suggest that mothers love their children enough to die for them. The selfless mother is another variant on the same stereotype that has, historically, functioned effectively to keep women out of public life. It is precisely this view, for example, that "the paramount destiny and mission of woman is to fulfill the noble and benign offices of wife and mother" that led the Supreme Court to permit women's exclusion from the legal profession in Bradwell v. Illinois.

Berkeley Breathed is not, of course, proposing anything so destructive as female exclusion from salaried labor. Nonetheless, a story -- particularly one about the meaning of motherhood -- has great potential to spark the imagination. And in this story, little girls are not given much to dream about. Projecting into the future, they can imagine children who do not appreciate them until something happens that shows that women will not only give up their ambitions and intellectual pursuits for their families, but they will give up their lives as well.

For a contrasting approach to family life, one that acknowledges reality but challenges it at the same time, read Knuffle Bunny, by Mo Willems. It is the story of a toddler who misplaces her stuffed animal while she is at the laundromat with her dad. It is clear from the story that dad is not as familiar as mom with the child's needs, but he is trying his best to learn, and that is something readers can aspire to.

Supreme Court Leaks?

So the Court didn't decide the voluntary integration cases today. The next date opinions come down is Monday, June 18. Perhaps then.

Meanwhile, over at Scotusblog, Tom Goldstein has a very interesting post on how conservative a Term this is shaping up to be. Tom thinks that when all is said and done, Justice Kennedy will have broken right more often and in much more significant cases than he has broken left. That may be right, but meanwhile, I'd like to call attention to an interesting line in Tom's post. Discussing the voluntary integration cases, he states: "The consensus is that the Chief Justice is writing an opinion invalidating the school assignment programs."

The consensus among whom? And how do they know? I highly doubt that Chief Justice Roberts himself has whispered this fact to the press, which leaves two possibilities: 1) Court-watchers have spun this theory from bits and pieces, such as the number of opinions the Chief has authored thus far, the questions asked at oral argument, and icy stares among the Justices. Such kremlinology is fun but highly speculative. That leaves possibility 2) A law clerk or administrative staff member is leaking. This would be an extraordinary breach of Court rules and etiquette. At least as far as I'm aware, in the past, when clerks and others have given tidbits to the press, they have waited until after the relevant case came down, and even then they do so anonymously because this is a clear violation of their obligation of confidentiality.

Accordingly, I'm going with theory number 1, which has the virtue of making it possible to think that the consensus is wrong, and thus that there's still a chance that the Court won't overrule Brown v. Board. (See explanation here.)

Headline: Supreme Court Overturns Brown v Board?

In my post on Tuesday, I suggested that sometimes you can predict the outcome of a Supreme Court case by asking what the headline will be in the major newspapers if it comes out one way or another. A reader rightly noted that the press often mischaracterizes the Court's work, for example, by treating certiorari denials as affirmances or by treating the decision to uphold a law as an endorsement of the policy behind the law. That's true, so I'll modify my earlier point to say that we want to know what a fairly accurate headline would say.

Thus the question: If (perhaps as soon as later this morning), the Supreme Court invalidates the voluntary integration plans of Louisville and Seattle, will the headlines read (as a colleague of mine only half-jokingly suggested they might) "Supreme Court Overturns Brown v. Board?" And if so, how unfair a characterization would that be? Stay tuned.

Tony Soprano and Abu Ghraib

Like many fans of the Sopranos, I was disappointed by the closing scene of the final episode, to the point of wondering whether my DVR had malfunctioned. Upon reading some commentaries, I'm a bit mollified. The best interpretation I've seen goes like this: The camera moves where Tony's eyes go, and that means constantly watching the door and every stranger for a possible assassin, so that what should be a relaxed family meal at a local diner --- an opportunity to celebrate a return to some sort of normalcy --- is utterly ruined. Forever Tony will be looking over his shoulder. Thus we have a simple lesson that crime doesn't pay, brought home by seeing how it doesn't pay even for the crime boss.

Yet, as with the Sopranos from start to finish --- although I'm one of those viewers who thought the show never quite repeated its greatest triumphs after Nancy Marchand (Livia Soprano) died --- things are more complicated. To the extent that we think Tony will survive, we envision an indictment and trial coming next. Unless the Justice Department handles the trial incompetently, there are only six ways Tony can be acquitted or hang the jury: 1) Kill witnesses; 2) intimidate witnesses; 3) intimidate the judge; 4) bribe the judge; 5) intimidate jurors; and/or 6) bribe jurors. None of these options is remotely legal and Tony richly deserves to spend the rest of his life in prison for murder and other crimes. If the Sopranos were a simple crime-doesn't-pay morality tale, we would hope that Tony does indeed go to prison, but of course it isn't and we don't. We hope that somehow he beats the rap. Why?

The obvious answer is that he's the protagonist of a multi-year series. With great writing and terrific acting, we naturally come to see the world of north Jersey organized crime through Tony's eyes. We don't sympathize with his criminal activity, but we see him as a complicated person. Sure, he uses the fact that his mother never loved him as an excuse. Even in the final episode, while seeing AJ's therapist to discuss AJ's depression, Tony can't help but talk about his own rotten childhood. But he did, after all, have a rotten childhood.

More darkly, I think Tony's experience serves as a dangerous fantasy outlet and metaphor. He once told Dr. Melfi that guys who got involved in "our thing" are like soldiers. They risk death from one another but they leave non-combatants alone. This is nonsense, of course. Innocent store owners who don't pay protection money aren't left alone, for example. But no matter. We want to believe in Tony because we want to believe in the banality of evil. We want to believe that it's possible to commit acts of hideous violence by day but then come home at night and have to deal with nothing more sinister than disobedient children and a strong-willed spouse. I don't think that David Chase intended the final episode or the Sopranos more generally as a metaphor for US foreign policy, but as with all great art, there are layers of unintended meaning here. And note that AJ---himself something of a metaphor for over-indulged Americans ---decides in the final episode to ride the bus and sign up with the armed forces out of the noblest of motives, only to take a movie production job and a gas-guzzling Beamer when they're offered.

What's Good For Philip Morris isn't Necessarily Good for the USA

Every now and then the Supreme Court decides a case in which the right result is so blindingly obvious that you're left scratching your head as to how it got there in the first place. Yesterday's Supreme Court ruling in Watson v. Philip Morris is such a case. The federal removal statute provides for removal of state law cases from state to federal court where the defendant is the "United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office . . . .” Philip Morris argued that it was a "person acting under" US officers because intensive regulation of the tobacco industry makes tobacco companies the agents of the U.S.

Justice Breyer's unanimous opinion rejecting this bold-bordering-on-preposterous argument proceeds in 4 simple steps:

1) "the removal statute applies to private persons who lawfully assist the federal officer in the performance of his official duty" (internal quotation marks omitted);

2) "the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law" because the whole point of the removal statute is to provide a federal forum for federal actors who might encounter hostility in state court, and simply complying with a federal obligation will not subject a party to anti-federal bias;

3) the reading advanced by Philip Morris would enormously expand federal court removal jurisdiction;

and

4) the alternative argument advanced by Philip Morris---that it exercised authority specifically delegated by the US in testing its products---is not supported by the record.

Amazingly, the Eighth Circuit had come to the opposite conclusion. How come? The answer, I think, is that the text and precedents could have been plausibly be read to provide for removal here (and in a great many other cases too), and Philip Morris was represented by extremely able counsel. But the appeals court judges forgot to ask themselves the following question: How will it look on the front page of national circulation newspapers if the courts say that Philip Morris is the effective equivalent of the United States? Justice Breyer's opinion is well-reasoned and faithful to the precedents, but this is one of those cases in which, once you really understand the question presented, you know what the result is going to be without having to look up any of the law.

Richard Rorty, RIP

Richard Rorty, who died yesterday, will undoubtedly be remembered most for his contributions to the fields he came to value least: metaphysics and epistemology. Rorty's views about the point of philosophy were sensible enough but to my mind his expression of them never quite rivaled that of William James. (Rorty was a better writer than the other great pragmatists, Pierce and Dewey, but that's not saying very much). Rorty's distinctive contribution to philosophy---set out in the first few chapters of Philosophy and the Mirror of Nature---is a challenge to the traditional view of the relation between the world and our conception of it. In traditional philosophy, our minds try to create as close a model as possible of the world as it really is as they can; they try to mirror nature. Rorty challenged this way of thinking, and though he wasn't completely original---Wittgenstein in particular made similar claims about the relation between the world and our language---he was the most sweeping.

Postmodernists and relativists often invoked Rorty to make extremely skeptical claims, and his language sometimes encouraged such use of his work, but at bottom Rorty was not a skeptic. Far from it. When Rorty argued that moral truths are not absolute in some ultimate sense, he was not making a claim about meta-ethics. He was not, in other words, saying that morality is bunk in virtue of being a co-product of the mind and whatever external stimuli the mind receives. He said the same exact sorts of things about scientific truths and moral truths, and what he said (again echoing James) was essentially: get over it. We can't be certain that slavery is REALLY wrong, in exactly the same way that we can't be certain that there REALLY are mountains, but the former limit shouldn't stop us from trying to put an end to slavery any more than the latter limit should cause us to worry that what appear to be mountains are really holographic projections displayed by a mad genius.

Accordingly, I think it's a serious mistake to think of the later Rorty---interested in a wide range of subjects including politics---as somehow inconsistent with the early Rorty's skepticism. The early Rorty was not a skeptic in the sense of someone whose only intellectual move is doubt. His goal was almost the exact opposite: to make possible action even in the face of doubt.

Rorty may or may not have been right about these issues, but it would be a shame if his memory were tarnished by the most unpragmatic postmodernists who purported to follow in his footsteps.

With Friends Like Albania . . .

"who needs enemies?" would be the idiomatic way to complete that question, but that's not fair. I will admit that when I saw that Americans in general and President Bush in particular are widely popular in Albania, my first reaction was to assume that Albania had slipped back into autocracy and that our popularity was of a piece with the "popularity" of North Korea's dear leader. But no, Albania continues to be on the road to democracy. It appears that they just like us. They really really like us. In fact, Albanians are grateful for US support for ethnic Albanians in Kosovo and other foreign policy moves of the past.

That should be welcome news except that somehow Albanian gratitude towards and warm feelings for Americans has translated into unflagging support for Bush Administration policies, including the Iraq war and, most recently, Guantanamo detentions. Albania has become the country of choice for releasing detainees whose home countries either won't take them or would likely subject them to treatment still worse than they received at Guantanamo. Even that would be welcome if Albania were integrating these refugees---who are being released in some cases because they shouldn't have been detained in the first place---but press accounts suggest that "parole" in Albania is not much better than detention in Guantanamo.

All in all, it appears that Albanians are making the mirror image mistake of other Europeans who translate their opposition to Bush Administration policies into general anti-Americanism. During the Cold War, it was popular for anti-Communists in the United States to express sympathy for the Russian people (and those subject to their rule and orbit) while expressing distaste for their rulers. I suppose the democratic character of the United States makes similar treatment of the US more difficult. Unlike Russians under Communism, we chose Bush et al as our leaders, and thus he represents us. But with Bush's approval rating in the 20s, one would hope that people around the world would distinguish between government policies and the people as a whole.

Missile Defense: Then and Now

Vladimir Putin's surprise offer to cooperate with the United States on a missile defense capable of detecting and intercepting missiles from Iran or elsewhere has been greeted as a positive sign for US/Russian relations, and it may well be. But it also raises questions about the potential unintended consequences of missile defense.

When President Reagan first committed billions to what was then known as the Strategic Defense Initiative (SDI or, pejoratively, "Star Wars"), it seemed, in principle, like a good idea. Reagan believed---correctly---that there was something immoral about relying for our defense against the threat of nuclear attack on a reciprocal threat to attack and kill millions of innocent civilians who had the bad luck to live under Soviet rule. Much better to defend ourselves with a shield that deflects or destroys the enemy's missiles without threatening civilian lives.

But the Cold War version of SDI had two basic flaws. First, the technology didn't work, even in tests in which the defenders had advance knowledge of the flight path of a single incoming missile. Second, and relatedly, it was destabilizing. Strategic planners understood that even with advances in technology, a missile shield would never be impermeable, partly because attackers could be expected to modify their missile design or simply send many more missiles (plus decoys) to overwhelm the system. But that created a payoff for a first strike. Prior to missile defense, a first strike by the US against Soviet land-based missiles was understood to be futile because it wouldn't destroy all hardened targets, but with missile defense, in a crisis in which the US feared a Soviet strike, the US might gamble that a US first strike would be sufficiently effective that the resulting decimated Soviet missiles could be handled by the missile defense. (The U.S. was not nearly as vulnerable to this logic because even with fewer total missiles, we had many more on nuclear subs and bombers, which could not readily be hit by a first strike.) Thus, the Soviets feared that the point of SDI was to give the US a first-strike capacity, which in turn made a confrontation between the superpowers more likely.

Fortunately, the Soviet empire fell before that nightmare scenario came to pass, and now champions of missile defense argue that whatever its limits against an adversary armed to the gills (like the old Soviet Union), it makes a great deal of sense against a potentially hostile power with a small arsenal, such as North Korea today and perhaps Iran in the not-too-distant future. A defense that is porous with respect to thousands of missiles could be impermeable with respect to a dozen or so.

This strikes me as correct but it overlooks other dimensions of the strategic equation. We know that neither Iran nor North Korea would launch an unprovoked missile attack against us or our allies because such an attack would have a clear return address, resulting in the devastation of the attacking country. Conventional wisdom (which seems clearly right on this point) says that Iran and North Korea want nukes so as to deter a conventional attack and, in the case of Iran at least, perhaps to give cover to its own conventional attacks (directly or through proxies such as Hezbollah) against its neighbors. So, one must ask (as game theorists tell us Cold Warriors far too infrequently asked about their adversaries): What will Iran and North Korea infer about our intentions if we build a missile defense against their missiles? The answer, I think, is that they will assume this means we're considering a conventional attack against them, and building a missile shield so that we can withstand a retaliatory nuclear strike. If so, the logical next move for them is to beef up their own nuclear and missile capacity.

That in itself would be terrible but it could have even worse consequences, since missiles are not the only way to deliver nukes, and some methods of delivery would not necessarily be traceable to the government of a country subject to deterrence. In other words, although the mechanism is somewhat different, development of a missile defense would be destabilizing today, just as it would have been during the Cold War. Reagan's noble dream remains a nightmare.

Don't Ask Don't Tell About Don't Ask Don't Tell

Rudy Giuliani had no problem living in the home of a gay couple when his wife kicked him out of the house for having an affair, but in his view Don't Ask Don't Tell --- premised on the notion that men and women who daily risk life and limb from snipers and IEDs would freak out if they knew exactly which of their fellow soldiers were gay --- is working well. And anyway, as he said at the latest Republican debate: "at a time of war, you don’t make fundamental changes like this." Mitt Romney said more or the less the same thing but his sellout on this issue is slightly easier to take because the whole premise of his campaign is that he didn't really mean any of those liberal things he said and did when he was Governor of Massachusetts; he was just kowtowing to a liberal constituency then but now freed from the bluest of blue states he's a true-blue conservative. Romney's approach is something like the Saturday Night Live parody of Hillary Clinton's vote for the Iraq War: "Knowing what we know now, that you could vote against the war and still be elected president, I would never have pretended to support it."

Having just bashed three candidates for President, I'll come to the real point: This is a potentially dangerous issue for both parties.

A NY Times story today reports that a poll taken last year showed the public favoring openly gay service members in the armed forces by a 60-32 margin. Moreover, logic is overwhelmingly on the liberalization side. Excluding---indeed removing---otherwise qualified service members during wartime simply because of their sexual orientation will strike most sensible people as a reckless rather than cautious thing to do, given the stop-loss orders and extended and repeat tours. Nonetheless, positions on Don't Ask Don't Tell are not designed to appeal to most people, sensible or otherwise. Right now, they are designed to appeal to the respective bases of the two parties, but with an eye on the general election too.

And thus we come to the question that's likely to define American politics for some time: Is the Roveian strategy dead? Karl Rove showed that you could (just barely and with some help) win Presidential elections by mobilizing your base and doing your best to mislead and/or frighten swing voters. Presumably some of the Republican candidates who support Don't Ask Don't Tell do so because they actually oppose gay people serving. But the ones who are simply playing to the base on this issue aren't necessarily doing themselves damage in the general. They believe that the 32 percent of Americans who oppose openly gay service members in the armed forces care about the issue a lot more than the 60 percent who favor repeal of Don't Ask Don't Tell. Moreover, because the 32 percent are older than the 60 percent, a larger fraction of them vote. (Remember MTV's "Vote or Die," or as it should have been called, "Vote or Don't"). Will this strategy work? Damned if I know. Conventional wisdom says that the 2006 midterms finally repudiated Rove's views, but then conventional wisdom also said that his strategy never should have worked in the first place.

Who Died and Made George Mitchell the Attorney General?

Yesterday, Major League Baseball Commissioner Bud Selig asked Jason Giambi---who has pretty much publicly admitting to having used illegal steroids in the past---to cooperate with the investigation being conducted on baseball's behalf by former U.S. Senator and all-around Mr. Fix-It George Mitchell, or else. The official press release from MLB indicates that Giambi is more likely to be disciplined (or likely to be disciplined more severely) if he does not cooperate than if he does. This in turn raises two questions.

First, disciplined for what? From what I have read, Giambi has only admitted to steroid use before baseball officially prohibited it. To be sure, even at the time, steroids were a Schedule III controlled substance under the law, and since Giambi almost certainly wasn't getting his via legal channels, his obtaining of the steroids may well have been a criminal offense. But as far as baseball is concerned, so what? Surely the league does not have the power to punish every player for every violation of the law. Thus, Johnny Damon ---Giambi's teammate with the Oakland A's and now again with the Yankees---suggested yesterday that if Giambi is to be punished it is apparently not for having used steroids but for having admitted it. The center fielder asked: “I’m still trying to figure out what he’s in trouble for: freedom of speech?”

Second, what about legal ramifications? Giambi may well have committed a crime or crimes, especially if, say, he gave some steroids to a teammate, which might count as unlawful distribution, potentially subjecting him to as long as five years in prison. So while baseball perhaps shouldn't be punishing Giambi for past steroid use, federal prosecutors might try. As the Balco investigation shows, this is not an idle worry, and as I noted in a FindLaw column in January, baseball and its players seem not to have taken the threat of criminal action nearly seriously enough. A NY Times story today adverts to the possibility that Mitchell might grant Giambi "immunity from being punished," but presumably this only refers to punishment by baseball. Last time I checked, a special investigator on behalf of Major League Baseball---even one who has been a U.S. Attorney, a federal judge, Senate Majority Leader, and Special Envoy to Northern Ireland---has no power to grant immunity from criminal prosecution.

Libby's Bad Luck

Mootness doctrine works in mysterious ways. As I note in my FindLaw column today, Monday's Supreme Court dismissal on mootness grounds of Claiborne v. United States highlights the awkwardness of mootness doctrine itself. Here I'll note a bizarre connection to the Scooter Libby case.

Claiborne presented the question whether a federal district judge, in departing downwards from a Sentencing Guidelines range, may rely on factors that have already been considered by the Sentencing Commission, absent extraordinary circumstances. The district judge in Claiborne thought that the answer was yes, in light of the Supreme Court's conversion of the Guidelines from mandatory to advisory in United States v. Booker. The Eighth Circuit disagreed and the Supreme Court would have given a definitive answer, perhaps as early as Monday, had Claiborne not died last week, thus mooting the case.

Suppose the Supreme Court had agreed with the district judge. In that case, it might have written an opinion stating that a district judge can depart downward even without an extraordinariness finding. And if that were so, then Judge Walton could have given Libby a lighter-than-30-month sentence on the basis of Libby's long record of public service. Without such a ruling, Judge Walton likely felt bound to follow the approach of the Eighth Circuit in Claiborne: As recently as February, the DC Circuit cited the Eighth Circuit decision in Claiborne as reflecting the proper approach to post-Booker departures. Thus, Judge Walton was not permitted to depart downwards based on Libby's service because the Guidelines already take this factor into account, stating:

§5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works (Policy Statement)
Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.

Had Claiborne lived out the Term, and had the Supreme Court reversed the Eighth Circuit, Libby would have been entitled to rely on the Supreme Court's decision on appeal or even on a motion for reconsideration. But, bad luck for Libby, Claiborne died last week, mooting his case, and thus leaving the DC Circuit's approach in place. Bad luck for Claiborne too, no doubt.

The Difference Alito Makes

For those of us waiting to see what effect the replacement of Justice O’Connor with Justice Alito would have on the Supreme Court, the last couple months have begun to provide some concrete evidence.

First, there was the Court’s decision in Gonzales v. Carhart, which upheld a federal law banning the abortion procedure known as “intact dilation and evacuation.” When the Court struck down a similar Nebraska law in 2000, Justice O’Connor wrote a concurrence in which she stated that the law was invalid because it did not include an exception to protect the life or health of the pregnant woman. The federal law did contain an exception to protect the woman’s life, but not her health, so it seems likely O’Connor would have voted to strike it down. Alito voted to uphold the law, and since the decision was 5-4, his vote in the case was decisive.

Second, the Court ruled 5-4 in Schriro v. Landrigan that a federal district court did not abuse its discretion in denying a habeas hearing to a death row inmate who claimed his lawyer had failed to present mitigating evidence at his sentencing trial. Alito joined the majority, and while it is not certain how O’Connor would have voted, there is some evidence suggesting the outcome might have been different if she were on the Court. Two years earlier, while Alito was on the Third Circuit, he rejected an inmate’s claim that his lawyer’s failure to investigate possible mitigating evidence violated his right to effective assistance of counsel. The Supreme Court overturned that ruling 5-4 in Rompilla v. Beard, with O’Connor joining the majority. Admittedly, the issue in Schriro was different than the issue in Rompilla – it focused on whether the inmate made a sufficient claim of prejudice to justify a hearing, not on whether the lawyer’s failure to introduce mitigating evidence fell below objective standards of reasonableness. But given this history – and O’Connor’s recent statements of concern about the quality of representation in capital cases – it is at least arguable that her replacement with Alito made a difference in Schriro.

Third, the Court ruled 5-4 in Ledbetter v. Goodyear Tire & Rubber Co., Inc. that Title VII permits employees to challenge pay disparities only if they filed a formal complaint with a federal agency within 180 days after their pay was set. The decision was written by Alito, and some commentators have argued that O’Connor would have voted the other way, given the implications of the ruling for women in the workplace. At the very least, it seems likely that O’Connor would have blunted the effect of the ruling with a fuzzy standard leaving open the possibility of challenges in some circumstances after the 180-day period.

Finally, the Court ruled 5-4 yesterday in Uttecht v. Brown against a death row inmate who claimed his trial judge erred by excluding a juror who expressed uneasiness with the death penalty but also said he would consider it in an appropriate case. Justice Kennedy’s majority opinion – which Alito joined – said federal courts should show special deference to trial judges in such cases because they are “in a superior position to observe the demeanor and qualifications of the potential juror.” It is unclear how O’Connor would have ruled in this case. During her early years on the bench, she wrote a number of opinions that made it harder for death row inmates (and other prisoners) to challenge their convictions and sentences. But in recent years, she has expressed concerns about the death penalty and the fairness of its application. It is arguable, though not certain, that she would have voted in the inmate’s favor, which would have changed the outcome in the case.

These are just four recent examples in which the replacement of O’Connor with Alito may have affected a Court decision and the shape of its doctrine. I would be interested to know whether readers agree with my assessment of these cases and whether they know of other cases in which Alito’s presence on the Court has possibly proved decisive. It might be a useful exercise to compile a list of these cases over the next few years as a way of demonstrating the significance of Supreme Court appointments. Alito and O’Connor are not all that far apart on the political spectrum, so if his replacement of her has a significant effect, one can only imagine what the replacement of, say, Justice Stevens with a Bush appointee would mean.

A New York State of Mind?

I haven't read the Second Circuit's decency ruling yet, but I liked this moment from today's New York Times coverage of the decision. The story quotes FCC chairman Kevin Martin as saying, "'The court says the commission is "divorced from reality." It is the New York court, not the commission, that is divorced from reality.'" He adds that if the agency is unable to prohibit some vulgarities during prime time, "'Hollywood will be able to say anything they want, whenever they want.'"

How subtle! The problem lies not with the law, the Commission, or even the ruling as such; it's those potty-mouthed hedonists living in our bicoastal Sodom and Gomorrah, New York and "Hollywood." And the Second Circuit is not a multi-state federal circuit, it's "the New York court." Thank goodness we have folks from the moral, non-licentious, non-vulgar heartland of America -- or, anyways, Washington, D.C. -- to set us straight.

For the record: The three-judge Second Circuit panel that issued yesterday's opinion does indeed feature two New Yorkers -- but one of them, Pierre Leval (Aha! A French name! It just gets worse and worse!), wrote the dissent. The third judge, Peter Hall, who joined the majority opinion, sits in that notorious den of sin, Vermont. (Too many trips to Foley Square have warped his sensibilities, presumably.) Judge Hall was appointed to the Second Circuit by the current President Bush.

WWJVF (Whom Would Jesus Vote For)?

Paul Caron at TaxProf has a couple of interesting posts (here and here) on churches either permitting or directly participating in political activities that, under the IRS rules, pretty clearly violate their tax-exempt status. The first of these posts deals with a sermon by Minister Bill Keller. Here are the juiciest bits of the sermon:

If you vote for Mitt Romney, you are voting for satan! This message today is not about Mitt Romney. Romney is an unashamed and proud member of the Mormon cult founded by a murdering polygamist pedophile named Joseph Smith nearly 200 years ago. The teachings of the Mormon cult are doctrinally and theologically in complete opposition to the Absolute Truth of God's Word. There is no common ground. If Mormonism is true, then the Christian faith is a complete lie. There has never been any question from the moment Smith's cult began that it was a work of satan and those who follow their false teachings will die and spend eternity in hell. This message is about the top Christian leaders in our nation who are supporting this cult members quest to become the next President of the United States.
. . .
If Romney gets elected as the next President of the United States, the Mormon cult will finally have the mainstream acceptance they have been striving for these past 200 years. Romney winning the White House will lead millions of people into the Mormon cult. Those who follow the false teachings of this cult, believe in the false jesus of the Mormon cult and reject faith in the one true Jesus of the Bible, will die and spend eternity in hell. *ROMNEY GETTING ELECTED PRESIDENT WILL ULTIMATELY LEAD MILLIONS OF SOULS TO THE ETERNAL FLAMES OF HELL!!!

Meanwhile, if you follow the links on Caron's second post---in which a candidate for County DA in Mississippi explains to her church why they should support her---you need to watch it in IE. The video doesn't show up in Firefox.

It will be interesting to see how aggressively the Bush IRS goes after churches for engaging in political activities. In recent years the religious right has had great success in persuading the US Supreme Court that laws excluding religious organizations and viewpoints from public participation on equal terms with secular ones count as discrimination in violation of free speech and/or free exercise. The faith-based initiatives of both President Clinton and (to a greater degree) President Bush have traded on this notion.

There have also lately been some attempts to extend the argument to politicking. Here the argument goes that it's unfair to prevent churches from engaging in/with political ideas, given that religious teachings have a great deal to say about the morality of various policy proposals of politicians. As a legal matter, this is a weak argument. There really is something to the claim that permitting secular but not religious groups access to some public facility, such as a classroom outside of school hours or a student activity fund, discriminates against religion. But in the case of the IRS exemption, there is no discrimination. Secular no less than religious organizations that engage in political activity lose their exemption. That's why secular organizations like the NAACP spin off separate arms---funded by separate, non-tax-deductible contributions---for lobbying, litigating and other political work. If Minister Keller wants to warn his flock about the damage a Romney Presidency would do to their immortal souls, he can do so on an equal footing with secular organizations that support or oppose various candidates for other reasons.

Musharraf v. New York Times, Dawn, Aaj TV, Geo TV, Oxford Univ. Press, et al.

UPDATE (6/7/2007): An updated and more complete discussion of the issues in this post may be found in my column for AsiaMedia on Wednesday.

**

A couple of weeks ago, in response to a New York Times editorial critical of continued U.S. support for General Pervez Musharraf, Pakistan's U.N. ambassador, Munir Akram, took a break from his duties as diplomat to perform a quick stint as media critic (thanks, SAJAforum). In a letter to the editor printed last week, Ambassador Akram complained that the Times's "repeated references to our president as a military dictator are offensive. President Pervez Musharraf was elected in accordance with Pakistan’s Constitution by our national and provincial parliaments. His re-election will be similarly democratic." [link]

It will be recalled that Musharraf was swept into office with 98 percent of the official tally in an April 2002 referendum that presented voters with no opponents and the following ballot question:

Do you want to elect President General Pervez Musharraf as President of Pakistan for next five years for the survival of local government system, restoration of democracy, continuity and stability of reforms, eradication of extremism and sectarianism and for the accomplishment of Quaid-i-Azam's concept.

At the time, leading Pakistani lawyers and human rights advocates concluded that the polling was not free and fair and even questioned the very legitimacy of the referendum itself under the Pakistan Constitution. [link] Just last week, soon after Ambassador Akram sent his letter to the Times, a former Pakistani high court judge made the same arguments to the Supreme Court panel hearing the allegations against suspended Chief Justice Iftikhar Chaudhry:

A former judge claimed yesterday that President Pervez Musharraf had no authority to suspend Chief Justice Iftikhar Chaudhry, arguing that the 2002 referendum that kept the military ruler in power was unconstitutional.

* * *

“People were made into fools,” [Fakhruddin G.] Ibrahim said of the referendum, adding that the vote’s lack of legal authority leaves Musharraf “not competent”.

Ibrahim called for an end to military rule, saying Musharraf had received a stamp of approval from a subservient parliament. Musharraf is expected to seek a new five-year presidential term later this year from the same parliament, but has yet to announce whether he will give up his position as army chief — the source of most of his power. [link]

Ibrahim might want to check his inbox to see if there is any fan mail from Ambassador Akram. But if all he and the Times get from Pakistani officials is correspondence, then maybe they should consider themselves fortunate, for just last week:

Three Pakistani journalists working for foreign news organisations in Karachi found bullets placed in their cars in what a local media body described on Wednesday as an attempt to intimidate the press into silence. "It is very threatening. This is a serious issue. It is an attempt to gag the press, but we will not compromise on our objectivity," Mazhar Abbas, secretary-general of the Pakistan Federal Union of Journalists, told Reuters. [link]

Over the weekend, the government and its allies cracked down on the electronic media, taking three independent TV news channels off the air for several hours. [link, link] Live coverage of Chaudhry's speech before a rally in Abbotabad (apparently the largest pro-Chaudhry rally to date) was blocked, and one of the channels, Geo TV, was apparently blocked on account of a broadcast critical of Musharraf. All of this came after weeks of escalating media intimidation -- countless warnings by senior government officials that the media must "use its press freedom with responsibility" and "avoid inappropriate reporting," a number of police raids on journalists' offices, violent attacks targeting journalists during the last month's violence in Karachi, and explicit threats last week by both government officials and the national cable operators association that media restrictions were likely on the horizon.

And then today, the other shoe dropped:

Under an emergency ordinance that takes effect[] immediately, Musharraf made a raft of amendments to regulations governing the electronic media, including private television channels that the general has accused of anti-government bias.

The ordinance says authorities can seal the premises of broadcasters or distributors breaking the law, and raises possible fines for violations from 1 million rupees ($16,665) to 10 million rupees ($166,650).

The Pakistan Media Regulatory Authority can also suspend the license of an offender. [link]

No word just yet on the circumstances ostensibly justifying the "emergency" measures. But not to be left out of the fun, Pakistan Prime Minister (and former Citibank executive/would-be ladies' man) Shaukat Aziz chimed in as well, warning that the media should "refrain from maligning prestigious state institutions, particularly the armed forces. Those who talk against the armed forces are enemies of Pakistan." [link] One cannot be entirely certain, but it's possible that Aziz's comments were directed not only at the electronic media, but also at Dr. Ayesha Siddiqa, whose new book "Military, Inc." -- launched last Thursday, banned by Friday -- investigates the lucrative private business interests that feed the Pakistan Army's power. [link]

Musharraf and his colleagues say that they are all for freedom of the press. In fact, just last month, Musharraf participated in the launch of a new English all-news TV channel by Dawn, a newspaper founded by Jinnah himself (and one that has been engaged in a bitter dispute with Musharraf's government for several years). At that event, Musharraf took "full credit for the mushrooming of private television channels, saying that whatever freedom there was in the country it was only because of him. 'I alone had insisted that we must give them freedom so that the media could hold everyone accountable,' he said while recalling the early years in power when he had framed the media policy." However, in that same speech Musharraf also warned, as he frequently has before, that the media must "demonstrate what he called a certain level of responsibility in the projection of Pakistan" in its coverage. [link]

Explicit media censorship was, of course, a key element of Indira Gandhi's Emergency in India, as this Time Magazine article from July 1975 reminds us:

Strict censorship has prevented the once lively Indian press (some 830 daily newspapers) from printing anything other than official handouts about the crisis. Government proscriptions against "unauthorized, irresponsible or demoralizing news items" last week were extended from articles and editorials to cartoons, photos and even advertisements. This further muzzling of the press may have been in response to a few cases of surreptitious sniping at the government's measures; in Kerala, for example, one paper ran a cartoon depicting Mrs. Gandhi dressed as Louis XIV with a caption reading "I am India." The censors also closely monitored the dispatches of foreign newsmen. Last week the government summarily expelled Washington Post Correspondent Lewis M. Simons, who had stirred official ire by reporting that the army did not solidly back Mrs. Gandhi. [link]

The violations of press freedom in Musharraf's Pakistan have not yet reached such an explicit and blatant point, and perhaps never will. Musharraf might well conclude that he can more effectively advance his domestic and international political objectives by relying on more subtle forms of interference with press freedom than total bans, explicit censorship, and the declaration of a complete state of emergency. Regardless, even short of the extremes reached in Indira Gandhi's India, the situation is not particularly encouraging.

* *

Meanwhile, according to the State Department, "[t]he direction that President Musharraf set for Pakistan is a good one, and we are supporting that." [link] And in the process, some moderate Pakistanis say that they "are coming to despise the USA." Not that there are necessarily any simple answers here, but mull over that the next time someone tries to tell you that "they" hate "us" simply because "they hate our freedoms."

Kevorkian Unbound

The release from prison last week of Jack Kevorkian on condition that he not assist in any further suicides is as good an occasion as any to reflect on the decade since the Supreme Court rejected a constitutional right to physician aid in dying in Washington v. Glucksberg and Vacco v. Quill. (Full disclosure: I assisted the lawyers challenging the laws in both cases and also co-authored a brief on behalf of a coalition of state legislators arguing for a constitutional right subject to reasonable state regulation). Kevorkian himself has always been at best an ambiguous figure among those (like myself) who favor some legal right of terminal patients to hasten or ease their deaths. He had the courage to stand up unequivocally for individual autonomy but he also appeared to act recklessly. Acting outside the law, he did not insist upon or follow the sorts of guidelines that one would want to ensure that a patient's choice was truly voluntary and considered.

Kevorkian's precise impact on the legal debate is difficult to know, but I'm tempted to think he did more harm than good---much as the religious conservatives who sought to keep Terri Schiavo connected to a feeding tube after a judge determined that this was contrary to her wishes when competent likely sparked a somewhat libertarian backlash against that position. (Yes, I know that these are considered different issues---disconnection from "artificial" means of prolonging life versus "active" measures to hasten death, but thoughtful people on my side in this debate deny that this distinction actually invokes the act/omission distinction in a persuasive form. A third party who, without the patient's consent, pulled the plug on a patient who was dependent on life support, would not thereby have "omitted" anything; he would have "acted" to commit murder; the key in these situations, my side says, is the presence or absence of fully informed consent, not a bogus invocation of the act/omission distinction.)

Still, whether or not Kevorkian is responsible, I do think there has been a marked shift in public debate on this issue over the last generation and a half, since Karen Ann Quinlan's tragic case first made headlines (and yes, same caveat about the non-distinction between "pulling the plug" and physician-assisted suicide). In those days, people who argued against a right to discontinue life-prolonging medical treatment and against physician-assisted suicide relied in large part on what I would call "religious" arguments to the effect that no one has a right to end his or her own life because life is a precious gift from God. One hears a secular version of this argument in Chief Justice Rehnquist's opinion in the Cruzan decision (another pulling the plug case), when he says that "a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual." At least in public debate, one rarely hears this sort of claim any more these days. Instead, arguments against physician-assisted suicide now typically focus on the potential negative consequences of legalization: that for some people a right to die will become a duty to die, and that this will be most true for those whose lives are least valued by society as a whole.

These objections cannot be dismissed but they can be met in one or both of two ways. The first is deontological: Even if it is true that the cost of recognizing X's right to hasten his death when his suffering becomes unbearable would be to make it somewhat more likely that some number of other persons will be pressured to die, we might think that this is no reason to require X's continued suffering. From X's perspective, the prohibition acts as a legal imposition of an extraordinary duty to rescue strangers. The second way to meet the objection is consequentialist and empirical. A NY Times story on Friday correctly noted that "[i]n the years Mr. Kevorkian spent in prison, little has changed legally in this realm across the country." Yet now, unlike when Kevorkian went to prison, we have a rough sense of what a regime of legal physician aid in dying looks like in the United States.

In Oregon, where physician aid in dying has been legal for the last eight years, there has been no rash of physician-assisted suicides and thus no reason to suspect that impatient heirs are using the law to dispose of their aging (and asset-consuming) potential benefactors. Moreover, the law legalizing physician-assisted suicide in Oregon has been credited with increasing use of hospice and other end-of-life palliative care. (See a California group's discussion of the Oregon experience here.) Thus, should American legislators and voters wish to make a reality-based decision about the risks and benefits of legalizing physician aid in dying, now they can do so.

Negative Action

A reader called my attention to an ABC News story yesterday (here) explaining that the White House has been focusing on women and minorities for the next Supreme Court vacancy should one arise. To which, of course, my reaction was to pray for the health and non-retirement of the current Justices. Sure, I'm highly skeptical of the efficacy of intercessionary prayer, but you never know, so in the spirit of Pascal's wager, why take chances?

In the event that President Bush does get another opportunity to name a Justice, my loyal reader asks, wouldn't the use of race or sex, even as a plus factor, be inconsistent with his Administration's commitment to colorblindness? The answer, I think, is almost certainly yes, but it's worth parsing why that is.

To begin, I'm betting that, in the event that Bush does name a woman or minority to the next vacancy, he will repeat his father's bold claim --- made then with respect to Clarence Thomas --- that the nominee is simply the best qualified person for the job. And depending on whom Bush nominated, that could be true. There is a decent-sized pool of female and minority judges (not to mention lawyers and law professors) who have outstanding professional qualifications. To say that any of them is the "most qualified" is somewhat arbitrary, especially given that what counts as a qualification is highly contested.

I have little doubt that a conservative judicial philosophy would count for the current Administration as a qualification, so that as between a distinguished liberal judge like Stephen Reinhardt of the Ninth Circuit and a conservative newcomer like Fifth Circuit Judge Priscilla Owen, surely a conservative Republican administration would want to say that Owen is better qualified because she better understands (what the Bush Administration regards as) the proper approach to constitutional interpretation. Of course, they couldn't actually SAY that, because in arguing for Senate confirmation, the administration would say that ideology should be irrelevant. So Owen would be selected based in part on ideology but sold exclusively based on professional qualifications.

But what about sex (or race or national origin in the case of a minority nominee)? How could the Bush Administration justify picking Owen over an equally conservative but more experienced/distinguished man, someone like former 4th Circuit Judge J. Michael Luttig, say? Here too we know what the administration would likely SAY: That Judge Owens's gender was irrelevant in the President's decision to nominate her. But is there a justification for picking her that is not inconsistent with the administration's opposition to affirmative action, even if the administration wouldn't articulate it? I don't think so.

One might be tempted to justify affirmative action in judicial selection on the ground that the Supreme Court has a unique responsibility to do justice for the nation as a whole, and it can only do so if its membership at least loosely approximates the nation as a whole. The problem, though, is that this sort of argument cannot be confined to the Court. Why can't a Court of 9 white men (or whatever) do justice for the nation as a whole? The answer would have to be that there's something about the experience of being a woman or a minority that gives one a different perspective, and if that's true for the Supreme Court, it seems equally true for police forces, university classes, etc.

Perhaps the administration could justify (if only to itself) deviating from its anti-affirmative action principles on the ground that confirmability is a legitimate consideration, and a Democratic Senate is more likely to confirm a conservative woman or minority than to confirm a conservative white male. But if so, wouldn't that make the Administration complicit in the Democrats' use of affirmative action? If this were a legal case, catering to customer preference would not (except in rare circumstances) be an answer to a charge of discrimination---and the principle seems equally applicable here.

Now I'll go back to praying for the health and non-retirement of the current Justices.

"Teach Your Children Well"....Or Else!

Kimberly Yuracko, at Northwestern Law School, has just posted on SSRN a fascinating and provocative paper titled Illiberal Education: Constitutional Constraints on Homeschooling. Here's the abstract:

Homeschooling in America is no longer a fringe phenomenon. Estimates indicate
that well over a million children are currently being homeschooled. Although
homeschoolers are a diverse group, the homeschooling movement has come to be
defined and dominated by its fundamentalist Christian majority many of whom
choose to homeschool in order to shield their children from secular influences
and liberal values. In response to political pressure from this group states are
increasingly abdicating control and oversight over homeschooling. Modern day
homeschooling raises then in stark form questions about the obligations that
states have toward children being raised in illiberal subgroups. Surprisingly,
the legal and philosophical issues raised by homeschooling have been almost
entirely ignored by scholars. This paper seeks to begin to fill this void
by making a novel constitutional argument. The paper relies on federal state
action doctrine and state constitution education clauses to argue that states
must — not may or should — regulate homeschooling to ensure that parents provide
their children with a basic minimum education and check rampant forms of sexism.
This paper argues, in other words, that while there is an upper limit on how
much states can constitutionally regulate and control children's education,
there is a lower limit as well. There is a minimum level of regulation and
oversight over children's education that states may not with constitutional
impunity avoid.

It is extensively researched and elaborately argued, and is well worth a read by those with a variety of constitutional interests: in state action doctrine, in constitutional enforcement, and certainly those with an interest in law and education and (although more on this later) law and religion. Yuracko makes a reasonably convincing argument on policy grounds that the states and Congress have abdicated a "duty," of some sort, to ensure that homeschooling meets at least miminal educational desiderata, at least through a reasonable testing mechanism.

Her broader argument that this is, in fact, constitutionally required is far more contentious and deserves attention, if only to tease out the implications of the piece. For instance, once having attempted to bring homeschooling under the constitutional umbrella, Yuracko argues that the state is constitutionally obligated to ensure that homeschoolers do not treat girls differently from boys. If it's a question of ensuring equal resources, this is a less controversial move, if you buy the initial moves that turn homeschooling into a constitutionally relevant area in the first place. But she also argues that the state may be obliged to "preclude the teaching of certain counterfactual claims such as the natural superiority and inferiority of the races or the danger to women's health of intellectual development. In addition, the basic minimum [educational standard required by the state and federal constitutions] may limit the extent to which parents may teach their children idiosyncratic and illiberal beliefs and values without labeling or framing them as such." So, in Yuracko's argument, there is a constitutional obligation for the state to ensure not just that homeschooled kids receive at least a minimally competent education, but also to ensure that they receive at least a minimally liberal education. That is controversial.

Given the breadth of the argument, which surely could apply not just to questions of race and gender but also questions of what moral or religious lessons children are being taught, I might have expected a good deal more discussion of any countervailing First Amendment speech or religion claims here, although the paper's cup already runneth over. And this little statement, tucked away early on, is also quite provocative: the paper "highlights the legal distinctness of parents and children and emphasizes that parental control over children's basic education flows from the state (rather than vice versa)."

A lot to chew over. I commend to readers this elaborate and interesting piece, regardless of one's ultimate views about its arguments and implications.

What Senator Brownback Thinks About Evolution

In yesterday’s New York Times, Senator Sam Brownback wrote an op/ed column entitled What I Think About Evolution. He felt the need to articulate his take on the origin of species because of his reaction to a question at the first Republican presidential debate. Chris Matthews asked candidates to raise their hands if they did not believe in evolution, and Brownback’s hand went up. Because some viewers might have looked askance at Brownback’s disavowal of scientifically established fact, he set out to clarify what he meant.

In his op/ed, the Senator from Kansas asserts without qualification that “[i]f belief in evolution means simply assenting to micro-evolution, small changes over time within a species, I am happy to say, as I have in the past, that I believe it to be true. If, on the other hand, it means assenting to an exclusively materialistic, deterministic vision of the world that holds no place for a guiding intelligence, then I reject it.”

What does Brownback mean when he says he assents to “micro-evolution”? He means that he accepts that each species changes over time. For example, though he provides no examples, I take it that Brownback would not dispute the evolution of one type of bacterium that dies when exposed to an antibiotic like penicillin into a slightly different bacterium that survives in the presence of penicillin. By the same token, Brownback would probably accept the proposition that the human species has, over time, developed the immunological capacity to defend against various bacteria. “There are aspects of evolutionary biology,” he tells us, “that reveal a great deal about the nature of the world, like the small changes that take place within a species.” (emphasis added).

What, then, does Brownback disavow? He does not say explicitly, but one can read between the lines. The repeated focus on “small changes” and “micro-evolution” implies that he rejects the theory that human beings evolved from simpler life forms (including single-celled organisms). He accordingly rejects the idea that apes and human beings have a common ancestor (even though our DNA – the foundation of so-called “micro-evolution” – indicates that we are in fact very closely related). Perhaps because it says in the Bible that God created human beings from dust, Brownback believes that human beings spontaneously came into existence by the hand of their Creator.

Senator Brownback would like readers to think that his acceptance of “part” of evolutionary theory – the part that has individual species changing slightly over time – makes his rejection of another part a small matter. The problem with this view is that interspecies evolution is the centerpiece of “the theory of evolution.” It says that species in existence today, including human beings, evolved from different species that existed millions of years ago (a great many more years, incidentally, than creationists believe would be consistent with the Biblical account). So when Sam Brownback raised his hand at the Republican debate, he joined the creationists in rejecting the best scientific evidence regarding human origins. There is nothing rational or moderate about that.